comments the coming of age of grandparent …

COMMENTS

THE COMING OF AGE OF GRANDPARENTVISITATION RIGHTS

ANNE MARIE JACKSON

INTRODUCTION

As the nature of the American family changes, family law alsochanges.' One rapidly emerging area of family law is the legal rightof grandparents to visit with their grandchildren.2 In response to theincreasing number of unmarried or divorced parents, the existenceof step-families, the estrangement of extended families,' the decrease

1. See Grandparents: The Other Victims of Divorce and Custody Disputes: Hearing Before theSubcomm. on Human Services of the House Select Comm. on Aging, 97th Cong., 2d Sess. 71 (1982)[hereinafter 1982 House Hearing] (statement of Dr. Andre Derdeyn, Director, University ofVirginia Child and Family Psychiatry Training Program) (explaining that "changes in the fieldof child custody and visitation in the United States which have occurred over most of the lastthree hundred years have evolved gradually as part of other social changes"); see also Ross A.Thompson et al., Grandparents' Visitation Rights: Legalizing the Ties That Bind, 44 AM. PSYCHOL.1217, 1217 (1989) (suggesting that policy makers must be careful not to change nature offamilies through laws, but merely create laws to accommodate those changes in family life thathave already occurred).

2. See 1982 House Hearing, supra note 1, at 71 (statement of Dr. Andre Derdeyn, Director,University of Virginia Child and Family Psychiatry Training Program) (noting that grandparentvisitation statutes "have burst quite recently upon the scene").

3. See Hicks v. Enlow, 764 S.W.2d 68, 70-71 (Ky. 1989) (explaining that "grandparents'visitation statute was an appropriate response to the change in the demographics of domesticrelations, mirrored by the dramatic increases in the divorce rate and in the number of childrenborn to unmarried parents, and the increasing independence and alienation within theextended family inherent in a mobile society"); randparents'Rights: Preserving GenerationalBonds:Hearing Before the Subcomm. on Human Servie of the House Select Comm. on Aging, 102d Cong., 1stSess. 3 (1991) [hereinafter 1991 House Hearing] (statement of Rep. Snowe) (noting that soaringdivorce rates, increased family mobility, fractured extended families, and politically activegrandparents with increased life spans have resulted in increased focus on grandparent visitationlaws); Sara S. Rorer, Comment, Grandparents' Vitation Rights in Ohio: A Procedural Quagmire, 56U. CN. L. REv. 295, 296 (1987) (indicating that grandparent visitation statutes arose in responseto rising divorce rate and changing attitudes about child custody);Joseph L. Galloway & PatriciaA. Avery, America's Forgotten Resource: Grandparents, U.S. NEWS & WORLD REP., Apr. 30, 1984, at76, 76 (reporting that social changes in recent years, including increased mobility and high

564 THE AMERICAN UNivERsrrY LAW REVIEW [Vol. 43:563

in the number of grandchildren,4 and the increased longevity ofgrandparents,5 all fifty states, but not the District of Columbia, haveenacted statutes giving grandparents visitation rights.6 These statutesare due largely to the well-organized efforts of grandparents and theirsupporters, who have joined together to ensure that the law preservesthe "special" relationship between grandparents and grandchildren. 7

divorce rates, have resulted in loss of grandparent-grandchild relationships).4. See Sarah H. Matthews & Jetse Sprey, The Impact of Divorce on Grandparenthood: An

Exploratory Study, 24 GERONTOLOGIST 41, 45 (1984) (noting that decrease in number ofgrandchildren in United States due to declining birth rate would logically result in greaterefforts by grandparents to ensure grandparent visitation rights).

5. See 1991 House Hearing, supra note 3, at 3 (statement of Rep. Snowe) (noting thatgrandparents are retiring earlier, living longer, and becoming more politically active); see also1982 House Hearing; supra note 1, at 1-2 (statement of Rep. Biaggi) (noting that current lifeexpectancies suggest that adults will spend 20 to 30 years of their lives as grandparents);JudithL. Shandling, Note, The Constitutional Constraints on Grandparents' Visitation Statutes, 86 COLUM.L. REV. 118, 121 (1986) (noting that longer life expectancies increase average amount of timeperson will spend as grandparent).

6. SeeALA. CODE § 30-3-4 (1989); ALAsKA STAT. § 25.24.150 (1991); ARiz. REV. STAT. ANN.§ 25-337.01 (Supp. 1993); ARK. CODE ANN. § 9-13-103 (Michie 1991); CAL. CIV. CODE § 197.5(West 1983 & Supp. 1993); COLO. REV. STAT. § 19-1-117 (Supp. 1993); CONN. GEN. STAT. § 46b-59 (West 1986); DEL. CODE ANN. tit. 10, § 950(7) (Supp. 1992); FLA. STAT. ANN. ch. 752.01(Harrison Supp. 1992); GA. CODE ANN. § 19-7-3 (Supp. 1993); HAW. REV. STAT. § 571-46(7)(Supp. 1992); IDAHO CODE § 32-1008 (1983); ILL. ANN. STAT. ch. 750, para. 5/607(b) (1) (Smith-Hurd 1993); IND. CODE ANN. § 31-1-11.7-2 (Bums Supp. 1993); IOWA CODE ANN. § 598.35 (WestSupp. 1993); KAN. STAT. ANN. § 60-1616(b) (1983); KY. REV. STAT. ANN. § 405.021 (Baldwin1991); LA. CIv. CODE ANN. art. 132(B) (West 1993); ME. REV. STAT. ANN. tit. 19, §§ 1001-1004(West Supp. 1993); MD. CODE ANN., FAM. LAW § 9-102 (1991); MASS. ANN. LAWS ch. 119, § 39(d)(Law. Co-op. Supp. 1992); MICH. STAT. ANN. § 25-312(7b) (Callaghan 1992); MINN. STAT. ANN.§ 257.022 (West 1992); Miss. CODE ANN. § 93-16-3 (Supp. 1993); MO. ANN. STAT. § 452.402(Vernon Supp. 1993); MONT. CODE ANN. § 40-9-102 (1993); NEB. REV. STAT. § 43-1802 (1988);NEV. REV. STAT. § 125A.340 (1991); N.H. REV. STAT. ANN. § 458:17-d (1992); N.J. STAT. ANN. §9:2-7.1 (West 1993); N.M. STAT. ANN. § 40-9-2 (Michie 1989); N.Y. DOM. REL. LAW § 72(McKinney 1989); N.C. GEN. STAT. § 50-13.2 (1987); N.D. CENT. CODE § 14-09-05.1 (Supp. 1993);OHIO REV. CODE ANN. §§ 3109.051 & 3109.11 (Anderson 1972 & Supp. 1992); OKLA. STAT. ANN.tit. 10, § 5 (West 1987 & Supp. 1993); OR. REV. STAT. § 109.121 (1991); 23 PA. CONS. STAT. ANN.§§ 5311-12 (1991); R.I. GEN. LAws § 15-5-24.1 through 15-5-24.3 (1988); S.C. CODE ANN. § 20-7-420 (33) (Law. Co-op. 1985); S.D. CODIFIED LAWS ANN. §§ 25-4-52 through 25-4-54 (1992); TENN.CODE ANN. § 36-6-301 (1991); TEx. FAM. CODE ANN. § 14.03(e) (West Supp. 1993); UTAH CODEANN. § 30-5-2 (Supp. 1993); VT. STAT. ANN. tit. 15, §§ 1011-16 (1989); VA. CODE ANN. § 20-107.2(Michie Supp. 1993); WASH. REV. CODE ANN. § 26.09.240 (West Supp. 1992); W. VA. CODE § 48-2B (1993); WiS. STAT. ANN. § 767.245 (West 1993); WYo. STAT. § 20-2-113(c) (1987); see alsoRichard S. Victor et al., Statutory Review of Third-Party Rights Regarding Custody, Visitation, andSuppor 25 FAM. L.Q. 19, 52-53 (1991) (including chart of all 50 grandparent visitation statutesand respective enactments); Phyllis C. Borzi, Note, Statutory risitation Rights of Grandparents: OneStep Closer to the Best Interests of the ChiKl 26 CATH. U. L. REV. 387, 387-401 (1977) (recording thatin 1977 only six states had grandparent visitation statutes).

7. See 1991 House Hearing, supra note 3, at 2 (statement of Rep. Downey) (claiming thatsenior citizens are "the most active lobby in this country, and when it comes to grandparentsthere is no one group more united in their purpose"); GRANDPARENT VISITATION DIsPUTEs: ALEGAL RESOURCE MANUAL 1 (Ellen C. Segal & Naomi Karp eds., 1989) [hereinafter GRANDPAR-ENT VISITATION MANUAL] (reporting that grandparents are becoming increasingly vocal aboutbeing denied visitation rights with grandchildren); Edward M. Bums, Grandparent VisitationRights: IsIt Time for the Pendulum to Fall?, 25 FAM. L. Q. 59, 59 (1991) (acknowledging that olderAmericans currently are more vocal about expressing their concerns than they had beenpreviously); Andre P. Derdeyn, Grandparent Visitation Rights: Rendering Family Dissension More

1994] GRANDPARENT VISITATION RIGHTS

The legal entitlement of grandparents to visit with their grandchil-dren, however, remains in a state of flux.8 The Supreme Court hastraditionally deferred to state legislatures and state courts on familylaw matters, particularly on grandparent visitation rights.9 The

Pronounced, 55 AM.J. ORTHOPSYCHIATRY 277, 282 (1985) (suggesting that increased demand forgrandparent visitation rights is due to today's generation of healthier, more powerfulgrandparents and to receptive legislators who recognize political power held by grandparents);Matthews & Sprey, supra note 4, at 45 (theorizing that expanding kinship systems due to divorceand decrease in number of grandchildren due to declining birth rate have combined toencourage grandparents to make concerted efforts to protect relationships with theirgrandchildren); Katrine Ames, Grandma Goes to Court, NEWSWEEK, Dec. 2, 1991, at 67, 67 (statingthat "[v]isitation rights have become one of the most emotional issues of the growinggrandparents' movement").

Several organizations assist grandparents in pursuing visitation rights with grandchildren,including Grandparents Anonymous, the Child Welfare League of America, the AmericanAssociation of Retired People, and the National Council of Senior Citizens. InJanuary of 1993,approximately 200 people converged on the Georgia State Capitol for a candlelight vigilexpressing concern over the welfare of that state's children. Candlelight Vigil to Underscore Concernfor Geqia Children, PR NEWSWIRE, Jan. 8, 1993, available in LEXIS, Nexis Library, Majpap File.The vigil was organized by The Georgia Council for Children's Rights (GCCR) and included,as part of the vigil, a listing of GCCR's six legislative goals for 1993, which included the"protection of multi-generational relationships." Id. The vigil also included a tribute to theSupreme Court's recent decisions to deny certiorari in cases upholding grandparents' visitationrights. Id. (referring to King v. King, 828 S.W.2d 630, 630-33 (Ky.), cert. denied 113 S. Ct. 378(1992) and H.F. v. T.F., 483 N.W.2d 803, 804-07 (Wisc.), cert. denied, 113 S. Ct. 408 (1992)).Previously, in July of 1992, 50 groups supporting grandparents' rights merged in Washington,D.C. to form the National Coalition of Grandparents. Sharon Theimer, Grandparents PressingVisitation Rights, LA. TIMES, Dec. 27, 1992, at A4.

8. Although all fifty states have enacted some form of a grandparent visitation statute,several states are currently considering legislation to amend their statutes. See, e.g., Ariz. S. 1422,41st Leg., Reg. Sess. (1993) (including stepgrandparents and great-grandparents among thirdparties able to petition for visitation); Colo. H. 1224, 59th Gen. Assembly, 1st Reg. Sess. (1993)(regarding grandparent visitation rights); Fla. S. 484, 13th Leg., Ist Reg. Sess. (1993) (providingadditional grounds for granting grandparent visitation and providing additional factors indetermining "best interests of the child"); Ga. H. 573, 142d Gen. Assembly, 1st Sess. (1993)(providing further definitions regarding grandparent visitation); Ind. S. 92, 108th Leg. Sess.(1993) (grantingvisitation to grandparents when custody has been given to grandparents' child);Iowa S. 213, 72d Gen. Assembly, 1st Reg. Sess. (1993) (relating to grandparent visitation); La.H. 663, Reg. Sess. (1993) (removing requirement that parents be interdicted, divorced, or deadfor court to award grandparents visitation); Md. S. 612, 407th Leg. Sess. (1993) (broadeningcourts authority to grant grandparents visitation); Mich. S. 97, 87th Leg., Reg. Sess. (1993)(deleting grandparent visitation rights provision from adoption code); Minn. S. 106, 78th Leg.Sess. (1993) (regarding grandparentvisitation rights); Miss. H. 986, 162d Leg. (1993) (providinggrandparents visitation rights with adopted grandchildren); Mo. S. 264, 87th Leg. Assembly, 1stReg. Sess. (1993) (providing presumption that when parents are married, they know what is inchild's best interests regarding visitation); N.M. H. 225, 41st Leg., Ist Reg. Sess. (1993) (relatingto grandparent visitation rights); Ore. H. 2588, 67th Leg. Assembly (1993) (allowing formediation in grandparent visitation disputes); W. Va. H. 2703, 71st Leg., 1st Reg. Sess. (1993)(relating to grandparent visitation rights).

9. The Supreme Court denied certiorari and, thereby, implicitly upheld state supremecourt decisions in King v. King, 828 S.W.2d 630, 630-33 (Ky.) (granting paternal grandfatherright to visit with his granddaughter over objections of child's married, natural parents), cert.denieA 113 S. Ct. 378 (1992) and H.F. v. T.F., 483 N.W.2d 803, 804-07 (Wisc.) (granting paternalgrandparents right to visit with grandchild despite adoption of child by stepfather), cert. denied,113 S. Ct. 408 (1992). Both decisions boldly confirm the rights of grandparents to visit withtheir grandchildren, despite adoption of a child by a stepparent or the desires of a child'shappily married, fit, natural parents to forbid visitation. These decisions will have a strong

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Court's recent decision to deny certiorari in state grandparentvisitation cases"0 provided little guidance to the states on how tointerpret the constitutional breadth and depth of grandparentvisitation rights.'

Congress has also refrained from acting on family law matters,proceeding on the assumption that family law is an area of statedomain. 2 In 1983, Congress passed a resolution calling for theadoption of a uniform state act on grandparent visitation rights.'3

Despite mounting support for grandparent visitation rights, thediscussion and controversy this issue has generated,1 4 and additionalcongressional hearings on the topic in 1991,15 the states have notacted on Congress' call for a uniform act.1

Also contributing to the uncertainty of grandparent visitation is thecommonly used, but ill-defined, "best interests of the child" standard,which is a lodestar for courts to determine whether grandparentvisitation should be allowed. 7 Because most grandparent visitation

impact on the continuing development of grandparents' visitation rights in the future andenunciate some of the current fluctuations in the law regarding grandparent visitation.

10. See supra note 9 (discussing King v. King and H.F. v. T.F.).11. See Theimer, supra note 7, at A4 (reporting that Supreme Court's rejection without

comment of parent's appeal in T.F. v. H.F. does not clarify for grandparents or lower courtswhat rights of visitation grandparents actually possess or how extensive those rights are).

12. See U.S. CONST. art. I, § 8 (enunciating powers of Congress, which do not encompasspower over family law or grandparents' visitation rights matters); U.S. CONST. amend. X ("Thepowers not delegated to the United States by the Constitution, nor prohibited by it to the States,are reserved to the States respectively, or to the people."); see alsoA BRIEFING BY THE CHAIRMANOF THE SUBCOMM. ON HUMAN SERVICES OF THE HOUSE SELECT COMM. ON AGING, GRANDPARENTS:NEw ROLES AND RESPONSIBILITIES 102d Cong., 2d Sess. 1 (Comm. Print 1992) [hereinafter 1992Briefing] (stating that Congress does not have authority over family law matters); GRANDPARENTVISITATION MANUAL, supra note 7, at 1 (asserting that state law traditionally governs domesticrelations).

13. S. Con. Res. 40, 98th Cong., 1st Sess., 129 CONG. REC. 13,487 (1983) (enacted) ("[A]uniform State act should be developed and adopted which provides grandparents with adequaterights to petition State courts for privileges to visit their grandchildren following the dissolution(because of divorce, separation, or death) of the marriage of such grandchildren's parents, andfor other purposes.").

14. See 1982 House Hearing, supra note 1, at 2 (statement of Rep. Biaggi) (commenting thatupon announcement of House Hearings on grandparent visitation rights, there was "an influxof calls and letters from across the Nation").

15. See 1991 House Hearing, supra note 3, at 3 (statement of Rep. Snowe) (noting thatpurpose of hearing is to examine relationship between grandparent and grandchild).

16. See 1991 House Hearing, supra note 3, at 2 (statement of Rep. Downey) (noting thatalthough Congress attempted to indirectly resolve problem of grandparent visitation throughcongressional resolution, states did not follow suit); 1992 Briefing supra note 12, at I (statementof Rep. Downey) (noting that Congress has been unable "to influence the states to adoptuniform grandparent visitation laws").

17. See 1991 House Hearing, supra note 3, at 16 (statement of John H. Pickering, Chair,Commission of Legal Problems of the Elderly, American Bar Association) (commenting thatjudges render inconsistent decisions because many state grandparent visitation statutes do notprovide adequate standards and that highly defined, objective criteria would result in moreprincipled decisions); 1982 House Hearing, supra note 1, at 73 (statement of Judith Areen,Professor of Law, Georgetown University Law Center, and Professor of Community and Family

566


statutes do not indicate how to determine what is in the best interestsof the child,"8 this difficult determination is left to the discretion andproclivities of the presiding judge." Without guidance from thestatutes, most courts embrace the notion that grandparents' visitationwith grandchildren is beneficial." Thus, courts do not fully analyze

Medicine, Georgetown University Medical Center) (admitting that familiar standard of "bestinterests of the child" is too vague); GRANDPARENT VISITATION MANUAL, supra note 7, at 12(acknowledging that familiar "best interests of the child" standard is vague and too broadlydefined); Kathleen S. Bean, Grandparent Visitation: Can the Parent Refuse?, 24J. FAM. L. 393, 394(1985-86) (noting that although "best interests of the child" is commonly used standard fordetermining visitation rights, most courts fail to analyze specific needs of particular childinvolved); Rebecca Brown, Grandparent Vuitation and the Intact Family, 16 S. ILL. U. LJ. 133, 146-47 (1991) (stating that primary problem with majority of states' grandparent visitation statutesis that "best interests of the child" has not been defined by legislature, and thus courts haveenormous amount of discretion in deciding issue); Thompson et al., supra note 1, at 1219(noting that basic problem with grandparent visitation statutes is failure to define "best interestsof the child" standard).

18. See, e.g., ARIZ. REV. STAT. ANN. § 25-337.01 (1989 & Supp. 1992); ARK. CODE ANN. § 9-13-103 (Michie 1991); MD. CODE ANN., FAm. LAw § 9-102 (1991); N.Y. DOM. REL LAW § 72(McKinney 1989); UTAH CODE ANN. §§ 30-5-1, -2 (1989); WASH. REv. CODE ANN. § 26.09.240(West 1989 & Supp. 1992); Wis. STAT. ANN. § 767.245 (West 1989 & Supp. 1992); see alsoJudyE. Nathan, Visitation After Adoption: In the Best Interests of the Child, 59 N.Y.U. L. REV. 633, 633(1984) (commenting that notion of "best interests of the child" defies precise definition);Patricia S. Fernindez, Grandparent Access: A Model Statute, 6 YALE L. & POL'Y REV. 109, 122 n.62(1988) (stating that only three state statutes provide criteria for determining "best interests ofthe child"). But see 1982 House Hearing, supra note 1, at 73 (statement ofJudith Areen, Professorof Law, Georgetown, and Professor of Community and Family Medicine, Georgetown UniversityMedical Center) (noting that although "best interests of the child" standard is too vague, it doesfocus on child, who is one most likely to suffer as result of conflict between adult members offamily).

19. See Fermindez, supra note 18, at 123 (asserting that "in states without enumeratedcriteria[,] the decisions are generally based on whatever criteria the judge feels is important").

20. See, e.g., Mimkom v. Ford, 332 A.2d 199, 204-05 (N.Y. 1975). The court noted:[A] very special relationship often arises and continues between grandparents andgrandchildren. The tensions and conflicts which commonly mar relations betweenparents and children are often absent between those very same parents and theirgrandchildren. Visits with a grandparent are often a precious part of a child'sexperience and there are benefits which devolve upon the grandchild from therelationship with his grandparents which he cannot derive from any other relationship.

See also Bean, supra note 17, at 395 (articulating that most grandparent visitation cases presumethat child benefits as result of visitation, and that detrimental effect of visitation must be shownto rebut presumed value of visitation); Ames, supra note 7, at 67 (noting psychologist'scomments that in almost every case it is in child's best interest to visit with her grandparents);Galloway & Avery, supra note 3, at 76 (reporting comment of granddaughter that grandparent-grandchild relationship is special and uniquely different from relationships with parents becausegrandparents can be more objective and provide different perspective).

While a court's notion that visitation between grandparents and grandchildren is inherentlybeneficial may be misplaced in terms of adjudicating the rights of the parties, grandparentsoften play four important roles in the life of a child: first, they maintain the identity of thefamily, mitigate disturbing events of the outside world for children, and provide a stabilizinginfluence for children; second, grandparents can serve as "family watchdogs" for abuse orneglect; third, grandparents may play arbitrators between parents and children; and finally,grandparents allow children to build connections with their family history which can lead to afirmer self-identity. See Fernindez, supra note 18, at 109-10 (citing Vern L. Bengston, Diversityand Symbolism in Grandparental Roles, in GRANDPARENTHOOD 11, 21-24 (Vern L Bengston &JoanF. Robertson eds., 1985)).

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whether the visitation rights at issue are truly in the best interests ofthe specific child."

The expanding diversity of family relationships also creates difficultyin determining the best interests of the child. As divorce anddistance splinter families, the number of people seeking visitation witha child often increases.23 Most states agree that grandparents shouldbe granted visitation rights in certain situations, such as in the case ofa divorce or the death of a parent.24 States differ considerably,however, on whether grandparents should be allowed visitation rightsafter a child is adopted 25 or when the family is intact.26

The lack of uniformity among grandparent visitation statutes,27 as

21. See King v. King, 828 S.W.2d 630, 631 (Ky.), cert. denied, 113 S. Ct. 378 (1992). TheKentucky Supreme Court explained:

Ifa grandparent is physically, mentally and morally fit, then a grandchild will ordinarilybenefit from contact with the grandparent. That grandparents and grandchildrennormally have a special bond cannot be denied. Each benefits from contact with theother. The child can learn respect, a sense of responsibility and love. The grandpar-ent can be invigorated by exposure to youth, can gain an insight into our changingsociety, and can avoid the loneliness which is often a part of an aging parent's life.

Id.; see also Bean, supra note 17, at 394 (noting that "the best interest of the child is oftendetermined with scant reference to the needs of the particular child involved, and isovershadowed by the court's desire to contribute to the maintenance of a grandparent-grandchild relationship"); see also Robert Mnookin, Child Custody Adjudication: Judicial Functionin the Face of Indeterminacy, 39 LAW & CONTEMP. PROB. 226, 291 (1975) (criticizing visitationanalysis by best interests of the child standard because " [i] ndividualized adjudication means thatthe result will often turn on a largely intuitive evaluation based on unspoken values andunproven predictions").

22. See Martha Minow, All in the Family & In All Families: Membership, Loving and Owing, 95W. VA. L. REV. 275, 279-97 (1992) (discussing influence of increasing family diversity on legalregulation of family).

23. See SandraJ. Morris, Grandparents, Uncles, Aunts, Cousins, Friends: How is the Court toDecide Which Relationships Will Continue?, FAM. ADV., Fall 1989, at 11, 13 (discussing logisticaldifficulty presented by expansion of third party visitation).

24. See Brown, supra note 17, at 133 (stating that majority of states only permit grandparentvisitation where parents have separated or divorced or where one parent has died).

25. See GRANDPARENT VISITATION MANUAL, supra note 7, at 15-17 (describing various andoften conflicting state provisions concerning grandparents' rights after adoption).

26. See 1982 House Hearing, supra note 1, at 117 (statement of Richard S. Victor, attorney)(noting that Michigan grandparent visitation statute does not address intact family situationbecause state legislature did not feel it should consider such controversial area); GRANDPARENTVISITATION MANUAL, supra note 7, at 8-9 (observing that while handful of state statutes allowvisitation when family is intact, most states only intervene after divorce or death of parent).

27. Compare DEL. CODE ANN. tit. 10, § 950(7) (Supp. 1992) (providing that courts may grantgrandparents reasonable visitation rights "regardless of marital status of the parents.., or therelationship of the grandparents to the person having custody of the child; provided, however,that when the natural or adoptive parents of the child are co-habiting as husband and wife,grandparent visitation shall not be granted over both parents' objection") with KY. REV. STAT.ANN. § 405.021 (Baldwin 1991) ("The circuit court may grant reasonable visitation rights to... grandparents of a child ... if it determines that it is in the best interest of the child to do so.")with ME. REV. STAT. ANN. tit. 19, § 752(6) (West Supp. 1993) (stating that "[t]he court mayaward reasonable rights of contact with a minor child to any 3rd persons") with MD. CODE ANN.,FAM. LAW § 9-102 (1991) (providing that after marriage ends "by divorce, annulment, or death,an equity court may- (1) consider a petition for reasonable visitation by a grandparent of anatural or adopted child of the parties whose marriage has been terminated; and (2) if the court


well as the inconsistent interpretation and enforcement ofgrandparents' visitation rights by state courts, has increased litiga-tion,28 litigation expenses,' and family animosity." This ambigu-ity and lack of uniformity prevents parents and grandparents fromfully understanding their custody and visitation rights l and encour-ages litigation. Consequently, judges decide visitation disputes. Thisdeprives the family of the opportunity to resolve the matter througha more amicable and less traumatic proceeding, such as mediation, 2

that potentially could mitigate animosity and foster family under-standing. Most importantly, the child, who is supposed to benefitfrom these visitation laws, often suffers the most as a result of thesepoorly defined statutes.

The highly emotional and contentious topic of grandparentvisitation rights deserves a comprehensive review to insure thatvisitation laws appropriately reflect sociological changes in familyoperation, and are not altering family structure. 3 The presentdeficiencies in grandparent visitation laws highlight the need for

finds it to be in the best interests of the child, grant visitation rights to the grandparent") withTENN. CODE ANN. § 36-6-301 (1991) (granting grandparents visitation rights "upon a finding thatsuch visitation rights would be in the best interests of the minor child," providing that thisstatute "shall not apply in the case of any child who has been adopted by any person other thana relative of the child or a stepparent of the child," and providing for grandparent visitation ifchild is placed in foster home upon analysis of grandparents' past for determination of anycriminal wrongdoing) with VT. STAT. ANN. tit. 15, §§ 1011-1016 (1989) (providing thatgrandparents may commence visitation petition '[iff a parent of a minor child is deceased,physically or mentally incapable of making a decision or has abandoned the child," listing eightfactors to consider in determining childs best interests, and automatically terminating visitationupon adoption by someone other than relative of child).

28. See Thompson et al., supra note 1, at 1221 (suggesting that if grandparent visitationrights were clearly enunciated, then both grandparents and parents would likely know outcomeof legal battle, and with knowledge of probable outcome, parties could settle their disputes).

29. See Galloway & Avery, supra note 3, at 76 (describing plight of New York couple thatspent $60,000 in legal fees over five years in effort to obtain visitation privileges with their twograndchildren whose mother had died); Theimer, supra note 7, at A4 (noting that grandparentsaccrued over $10,000 in legal fees in order to visit with their granddaughter for one day everythree months).

30. See Derdeyn, supra note 7, at 278-79 (noting that to bring visitation problem to courtfor resolution, parties must have strong feelings of animosity for each other).

31. See 1982 House Hearing, supra note 1, at 44 (statement of Mr. Shumway, grandfather)(addressing implicit difficulties, but inherent importance, of formulating uniform grandparentvisitation statute, and pondering "how to develop a law that would be mechanical enough toaddress your needs but human enough to allow some of these important factors to be taken intoconsideration").

32. See 1982 House Hearing, supra note 1, at 84 (statement of Richard S. Victor, attorney).See generally infra notes 178, 210-18 and accompanying text (discussing need for and benefits ofmediation).

33. See Thompson et al., supra note 1, at 1217 (asserting that poorly designed policies canbe particularly damaging in family law because "family law helps to define and institutionalizefamily structure and roles, [and thus] well conceived revisions in family law are especiallyimportant because they may not only reflect cultural changes in family life but also help to fosterthem").

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greater continuity and stability in grandparent visitation statutes. Aclearly defined and widely adopted model grandparent visitationstatute would allow grandparents, parents, and children to knowwhere they stand in relation to the law and, thus, encourage intra-family resolution of family visitation disputes.'

Part I of this Comment explores the constitutional background ofparental rights focusing on parent's rights to make child-rearingdecisions without state interference. Part II analyzes the history ofgrandparents' rights and traces the development of grandparentvisitation statutes. Part III appraises two recent areas of expansion ingrandparent visitation statutes, the intact family and adoptions. PartIV discusses the future of grandparent visitation rights and stressesthat legislators must be careful to codify social changes and not forcetraditional notions of family by creating legally imposed visitationrights. Part IV also discusses the importance of uniformity ingrandparent visitation rights, and the ways this uniformity can beachieved. Pursuing uniformity, Part V proposes a model grandparentvisitation statute that is analyzed in Part VI.

I. CONSTITUTIONAL ANALYSIS OF PARENTAL RIGHTS

A. The State's Parens Patriae Interest

To understand the gravity of creating grandparent visitation rights,it is necessary to analyze the rights traditionally held by parents.Courts consistently recognize and protect family autonomy.35

Further, parents' freedom in child-rearing is a fundamental right thatcourts have protected from unwarranted state interference.36 Thecommon-law concept that the state is the ultimate parent of everychild, parens patriae, is one of the only limitations on parental

34. See Thompson et al., supra note 1, at 1221 (arguing that explicit standards regardinggrandparent visitation might allow families to "bargain in the shadow of the law" because clearstandards allow potential litigants to predict probable results of litigation, thereby diminishinggrandparent visitation cases and encouraging intrafhmily negotiations to resolve dispute).

35. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982) (confirming "historicalrecognition that freedom of personal choice in matters of family life is a fundamental libertyinterest protected by the Fourteenth Amendment").

36. See, e.g., Bellotti v. Baird, 443 U.S. 622, 638 (1979) (declaring that "deeply rooted in ourNation's history and tradition, is the belief that the parental role implies a substantial measureof authority over one's children"); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (holdingthat "custody, care and nurture of [children should] reside first in the parents, whose primaryfunction and freedom include preparation for obligations the state can neither supply norhinder"); Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (recognizing "the liberty ofparents and guardians to direct the upbringing and education of children under their control").

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GRANDPARENT VISITATION RIGHTS

autonomy.3 7 To protect parental autonomy, the Supreme Court hasdeveloped a threshold test for the imposition of the state's parenspatriae interest." Generally, the state cannot interfere with theparents' right to raise a child in a particular manner unless theparents' practice endangers the child. 9

B. Rights of Parents to Raise Their Children Without Governmental

Interference

One of the principal Supreme Court decisions on parental rightsand childrearing is the 1923 case of Meyer v. Nebraska.40 Meyeraddressed a state statute prohibiting foreign language instruction tochildren prior to the ninth grade.41 The goal of the statute was toinstill children with American ideals and principles by groundingthem in the English language.42 The Court invalidated the statute,concluding that parents may engage a foreign language instructorbecause the Fourteenth Amendment grants parents the right to"establish a home and bring up children" without governmentalinterference.43

The Supreme Court reaffirmed parents' rights to raise a childwithout state interference in Pierce v. Society of Sisters.' In Pierce, theCourt considered the validity of a state statute requiring parents tosend their children to public schools, a requirement that precludedparents from sending their children to equivalent religious schools.45

As in Meyer, the Court recognized parents' rights to direct the courseof their children's upbringing without undue hindrance from the

37. See Finlay v. Finlay, 148 N.E. 624, 626 (N.Y. 1925) (explaining that court "is to put[itself] in the position of a 'wise, affectionate, and careful parent' ... and make provision forthe child accordingly.., by virtue of the prerogative which belongs to the [state] as parenspatriae"); see also Bean, supra note 17, at 407 (noting that "[f]amily autonomy... has most oftenbeen limited by the state's parens patriae interest in protecting the children's welfare"); RobertaKotkin, Note, Grandparents Versus the State: A Constitutional Right to Custody, 13 HoFsTRA L. REV.375, 385-87 (1985) (suggesting that parental autonomy may be trespassed "when some parentalact or omission triggers the interest and concern of the state"); Rorer, supra note 3, at 295(noting that state may only intrude on family privacy under compelling circumstances).

38. See infra notes 40-60 and accompanying text (discussing evolution of Supreme Court testfor state intervention). See generally Bean, supra note 17, at 407-22 (describing development ofSupreme Court guidelines for state intervention in parents' right to raise child).

39. See Bean, supra note 17, at 422.40. 262 U.S. 390 (1923).41. Meyer v. Nebraska, 262 U.S. 390, 403 (1923).42. Id. at 393-94.43. Id. at 399.44. 268 U.S. 510 (1925).45. Pierce v. Society of Sisters, 268 U.S. 510, 530-31 (1925).

1994]

THE AMERICAN UNIVERSITY LAW REvIEw

state and declared the statute invalid.'

C. Harm to the Child as the Determinative Test

In Wisconsin v. Yoder,47 the Supreme Court established the "harmto the child" test to determine if a state has authority to invoke thedoctrine of parens patriae.4 In Yoder, Amish parents wanted toprevent their child from receiving state-mandated secondary schooleducation.49 The Court acknowledged the potential for parents toact contrary to the best interests of their child,5" but concluded thatif the parents' method of raising their child does not 'jeopardize thehealth or safety of the child, or have a potential for significant socialburdens,"" the State shall not interfere.52

In Lassiter v. Department of Social Services,"3 the Supreme Courtaffirmed the "harm to the child" inquiry and the doctrine of parentalautonomy. 4 Lassiter involved an imprisoned mother whose parentalrights were terminated after she failed to have any contact with herchild, who was in foster care for over two years. 5 The SupremeCourt stated: "This Court's decisions have by now made plain [that]. . .a parent's desire for and right to the 'companionship, care,custody, and management of his or her children' is an importantinterest that 'undeniably warrants deference and, absent a powerfulcountervailing interest, protection."'5 6

Thus, the Supreme Court has granted parents an extraordinaryamount of privacy and protection regarding the upbringing of theirchild.57 Until recently, the only exception to parental autonomy was

46. Id. at 534-35; see also Stanley v. Illinois, 405 U.S. 645, 651 (1972) (holding that right toraise one's children is essential and "undeniably warrants deference and, absent a powerfulcountervailing interest, protection"). In Stanley, an unmarried father challenged an Illinois lawthat declared his children wards of the State upon the death of their mother merely because thechildren's parents had never married. Stanley, 405 U.S. at 646. The Supreme Court held thatintervention by the State prior to a hearing on the father's fitness as a parent was a due processviolation. Id. at 649.

47. 406 U.S. 205 (1972).48. Wisconsin v. Yoder, 406 U.S. 205, 234 (1972).49. Id.50. Id.51. Id. at 234.52. See id. at 232 ("The history and culture of Western civilization reflect a strong tradition

of parental concem for the nurture and upbringing of their children. This primary role of theparents in the upbringing of their children is now established beyond debate as an enduringAmerican tradition.").

53. 452 U.S. 18 (1981).54. Lassiter v. Department of Social Servs., 452 U.S. 18 (1981).55. Id. at 20-21.56. Id. at 27 (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)).57. See Fernandez, supra note 18, at 113 (asserting that parental judgment in matters of

nurturing child makes sense as practical matter because state does not have expertise or

572 [Vol. 43:563


the state's parens patriae interest, which states could invoke only whenthe parents' actions endangered a child. 8 The introduction ofstatutory visitation rights for grandparents, however, places a furtherlimitation on parental autonomy59 and increases the level of stateinterference in childrearing by granting grandparents visitation rightsthat they did not ordinarily possess in the past.' °

II. HISTORY OF GRANDPARENT VISITATION RIGHTS

A. Grandparent Visitation Rights at Common Law

Due to the common-law emphasis on parental autonomy, grandpar-ents traditionally have no right to visit with their grandchildren if theparents choose to deny them access.61 Judges have enunciatedseveral reasons for denying grandparents visitation rights. Somejudges have opined that granting grandparents an independent right

resources to govern upbringing of every child in its domain). See generally Kotkin, supra note 37,at 380-88 (analyzing development of parental autonomy rights).

58. See supra notes 47-56 (discussing harm prerequisite for state intervention).59. See MichaelJ. Lewinski, Note, Visitation Beyond the Traditional Limitations, 60 IND. LJ. 191,

192-93 (1984) (describing visitation privileges as form of limitation placed on custody becausein visitation, custodian has care and control of child even if only for limited period); Rorer,supra note 3, at 298 (acknowledging that visitation is infringement on parents' custody rights).

60. See MichaelJ. Minerva,Jr., Grandparent Visitation: The Parental Privacy Right to Raise Their"Bundle ofJoy, " 18 FLA. ST. U. L. REV. 533, 533 (1991) (explaining that grandparent visitationstatutes provide grandparents with rights that they did not previously have absent death ofgrandchild's parent or dissolution of parents' marriage).

61. See, e.g., Ex parte Bronstein, 434 So. 2d 780, 784 (Ala. 1983) (Shores, J., concurring)(recognizing that common law does not grant grandparent visitation rights), superseded by statuteas stated in Mills v. Parker, 549 So. 2d 97 (Ala. Ct. App. 1989); White v.Jacobs, 243 Cal. Rptr.597, 598 (Ct. App. 1988) (denying grandparent visitation rights at common law); Odell v. Lutz,177 P.2d 628, 629 (Cal. Dist. Ct. App. 1947) (conceding that grandparents do not possessvisitation rights under common law); Chodzko v. Chodzko, 360 N.E.2d 60, 63 (Ill. 1976) ("Theright to determine the third parties who are to share in the custody and influence of andparticipate in the visitation privileges with the children should vest primarilywith the parentwhois charged with the daily responsibility of rearing the children."); In re Goldfarb, 70 A.2d 94, 96(NJ. Super. Ct. Ch. Div. 1949) (holding that grandparents do not have visitation rights undercommon law); Shriver v. Shriver, 219 N.E.2d 300, 303 (Ohio Ct. App. 1966) (disapprovingparents' decision to deny grandparents visitation with grandchild, but conceding that courtcannot create visitation rights for grandparents);Jefferies v.Jefferies, 253 S.E.2d 689, 691 (W.Va. 1979) (holding that grandparents have no legal right to visitation with grandchildren).

There are four possible rationales for the common-law rule disallowing grandparent visitation:first, a parent's obligation to allow grandparent visitation is moral, not legal; second, ajudicialaward of visitation would jeopardize parental authority, third, forcing a child into the center ofa conflict between parents and grandparents is contrary to the child's best interests; and finally,natural ties, not judicial intervention, are the best formula for restoring family accord.GRANDPARENT VISITATION MANUAL, supra note 7, at 24; see Katherine T. Bartlett, RethinkingParenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the NuclearFamily has Failed; 70 VA. L. REV. 879, 881 (1984) ("According to traditional parental rightsdoctrine, applied still in many states, the state will not recognize relationships formed by adultsother than the child's legal parents unless the parents are unfit or have abandoned the child.").

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of visitation would undermine parental authority." Other courtswere concerned that an intergenerational conflict would only hurt thedevelopment of the child involved.63 Finally, courts traditionallyhave treated parental autonomy as a fundamental value that shouldnot be impeded by granting grandparent visitation rights.6

Although they lack common-law visitation rights, grandparents dohave nominal constitutional rights regarding their extended family.The Supreme Court has "accepted an enlarged definition of 'family'when to do so will nurture and protect established familial andcultural bonds."65 In Moore v. City of East Cleveland,' a zoningordinance defined "family" so narrowly that it prevented the appellantfrom sharing her home with her son and her two grandsons, whowere first cousins.67 The Supreme Court determined that personalchoices in matters of family definition are protected by the DueProcess Clause, a determination that protects the tradition of theextended family.6"

The Court further intimated that in certain instances, grandparentshave constitutionally protected family rights.69 The Court in Moore,however, only discussed situations where the grandparent was alreadyliving with the grandchild. 70 Because grandparents at common lawgenerally do not have a right to visit with their grandchildren,7' adue process argument promoting grandparent visitation wouldprobably fail because a traditionally protected right is not beingasserted.72 Thus, Moore does little to provide grandparents whose

62. Ode!l 177 P.2d at 629 ("'To permit grandparents to intervene would... injuriouslyhinder proper parental authority by dividing it.'") (quoting Succession of Reiss, 15 So. 151, 152(La. 1894)).

63. Flannery v. Sharp, 30 A.2d 810, 812 (Pa. 1952); see also Cox v. Stayton, 619 S.W.2d 617,621 (Ark. 1981) ("To create new, enforceable rights in grandparents could lead to results thatwould burden... the welfare of the child.").

64. Theodore R. v. LorettaJ., 476 N.Y.S.2d 720, 721 (Fain. Ct. 1984) (denying grandparents'request for visitation rights and reiterating that "there should not be any judicial interferencewith the fundamental constitutional rights of a parent").

65. Kotkin, supra note 37, at 388.66. 431 U.S. 494 (1977).67. Moore v. City of East Cleveland, 431 U.S. 494, 495-96 (1977).68. Id. at 502-04.69. Id. at 504 ("Ours is by no means a tradition limited to respect for the bonds uniting

members of the nuclear family. The tradition of uncles, aunts, cousins, and especiallygrandparents sharing a household along with parents and children has roots equally venerableand equally deserving of constitutional recognition.").

70. Id. at 495-96.71. See supra note 61 (discussing grandparents' lack of visitation rights at common law).72. SeeWard v. Ward, 537 A.2d 1063, 1067 (Del. Faro. Ct. 1987) (holding that grandparent

can claim deprivation of liberty interest "only where the grandparent-grandchild relationship isessentially a custodial one"); see also Brown, supra note 17, at 143 (asserting that for interest tobe entitled to due process protection, it must be generally recognized as right protected byConstitution and that grandparent visitation does not fall within this rubric).

1994] GRANDPARENT VISITATION RIGHTS 575

grandchildren have never lived with them with a constitutional rightof visitation.

73

B. Enactment of Grandparent Visitation Statutes

Since 1965, state legislatures, sympathizing with the plight ofgrandparents, have enacted grandparent visitation statutes. 74 Notcoincidentally, these statutes secured grandparent visitation rights asthe divorce rate increased and the birth rate declined in America.75

Often when there is a divorce or the death of a parent, relationsamong the parent and former in-laws, the child's grandparents,become strained.76 State legislatures have determined that, in suchinstances, multigenerational ties between grandchildren and grandpar-ents should not suffer because of strained relations between parentsand former in-laws.77 Further, as the American birth rate began todecline, grandparents had fewer grandchildren and, therefore, had anincreased interest in maintaining contact with those grandchildren

73. Brown, supra note 17, at 142 (reasoning that under Moore, definition of "family"excludes grandparents unless grandparents are living with grandchild, and that once these livingarrangements change, courts will deny grandparents right to visit with grandchild).

74. See supra note 6 and accompanying text (listing grandparent visitation statutes); see alsoExparte Bronstein, 434 So. 2d 780, 784 (Ala. 1983) (Shores,J, concurring) (recommending thatAlabama legislature extend right of visitation to grandparents because "[p]recious little remainsof the family structure, which played such a vital part in the development of this nation. Itseems unconscionable to allow its futher fragmentation."); King v. King, 828 S.W.2d 630, 632(Ky.) (enunciating that statutes granting grandparent visitation rights are legislative attempts tostrengthen familial bonds in face of general disintegration of family unit), cert. denied, 113 S. Ct.378 (1992).

75. See Fermndez, supra note 18, at 115 (noting that initiation of grandparent visitationstatutes occurred as divorce rate in America tripled); Matthews & Sprey, supra note 4, at 45(suggesting that expanded kinship systems created by increasing divorce rate and declining birthrate have compelled grandparents to take legal action to preserve their visitation rights withgrandchildren); supra notes 3-4 and accompanying text (discussing how grandparent visitationstatutes were result of changing demographics and increasing divorce rate); see also 1982 HouseHearing, supra note 1, at 3 (statement of Rep. Biaggi) (describing goal of congressional hearingsas launching national debate on issue of grandparent visitation rights in event of maritaldissolution).

76. See 1982 House Hearing, supra note 1, at 16 (statement of Mr. and Mrs. Max Chasens,grandparents) (describing disputes between grandparents and parents). Mr. Chasens noted:

[Some disputes] may be sincere or may be prompted by dislike and distrust betweenthe generations. For instance, a mother with custody may deny her ex-husband'sparents permission to see their grandchildren because she disapproves of their religion,their morals or their attitudes. Or she may want revenge for real or imagined insultsby the parents or her former husband.

Id. (quoting Alice Eckerson, Grandparents Fightfor Visiting Rights, An. Cr1Y PRESS, Apr. 13, 1982,at 10). The strain of divorce may become exacerbated when the custodial parent moves away,and as a result of unrelated personal feelings, the custodial parent may deny visitation to thegrandparents. This same predicament may also develop when a spouse dies, and the parentdenies the deceased spouse's parents access to the grandchild. Fernindez, supra note 18, at 116.

77. Ferndndez, supra note 18, at 116.

576 THE AMERICAN UNIVERSriY LAw REviEw [Vol. 43:563

they did have.78 Grandparent visitation statutes were a response tothese developments and an acknowledgement of the unique andnostalgic relationship between grandparents and grandchildren.79

Originally, grandparent visitation statutes were enacted to protectchildren from the emotional harm of abruptly ending meaningfulgrandparent-grandchild relationships during times of family crisis.80

As time has progressed, many state legislatures have broadened thescope of grandparent visitation statutes to allow visitation whenever itwould be in "the best interests of the child."" Expanding the scopeof grandparent visitation rights is problematic in a variety of ways.First, while using "the best interests of the child" as a guide forgranting grandparent visitation is a noble idea, it often fails to achieveits goal because legislatures fail to define "the best interests of thechild."" Also, because most family law matters, including grandpar-ent visitation, are left to the discretion of individual states,grandparents' visitation rights vary considerably from state to state,raising the problem of inconsistent treatment.8 3

III. RECENT EXPANSION IN GRANDPARENT VISITATION STATUTES

Initially, most grandparent visitation statutes only encompassed

78. See supra note 4 (discussing relationship between declining birth rate and grandparentvisitation disputes).

79. See supra note 20 and accompanying text (discussing benefits of unique relationshipbetween grandparents and grandchildren).

80. See Samuel V. Schoonmaker III et al., Constitutional Issues Raised by Third-Party Access toChildren, 25 FAM. L.Q. 95, 95-96 (1991) (discussing development of and change in character ofgrandparent visitation statutes).

81. See, e.g., ARIZ. REV. STAT. ANN. § 25-337.01 (Supp. 1993); ARK. CODE ANN. § 9-13-103(Michie 1991); CAL CIrv. CODE § 197.5 (West 1983 & Supp. 1993); KY. REV. STAT. ANN. § 405.021(Baldwin 1991); MD. CODE ANN., FAM. LAW § 9-102 (1991); N.Y. DOM. REL. LAW § 72 (McKinney1989); TENN. CODE ANN. § 36-6-301 (1991); UTAH CODE ANN. § 30-5-2 (Supp. 1993); VT. STAT.ANN. tit. 15, § 1013(a) (1989); WASH. REV. CODE ANN. § 26.09.240 (West Supp. 1992); Wis. STAT.ANN. § 767.245(4) (West 1993).

82. See supra notes 17-21 and accompanying text (discussing problems with "best interestsof the child" standard).

83. Compare FLA. STAT. ANN. ch. 752.01 (Harrison Supp. 1992) (providing that grandparentsmay petition for visitation privileges when: (1) one or both parents of child are deceased, (2)parents are divorced, or (3) one or both parents have deserted child) with KY. REV. STAT. ANN.§ 405.021 (Baldwin 1991) ("The circuit court may grant reasonable visitation rights to either thepaternal or maternal grandparents of a child and issue any necessary orders to enforce thedecree if it determines that it is in the best interest of the child to do so."). The Florida statuteis the most common type, limiting grandparent visitation to cases of divorce, death, orabandonment by one of the child's parents. See Rorer, supra note 3, at 298 (contending thatmajority of grandparent visitation statutes require "disruptive precipitating event"). TheKentucky statute, on the other hand, typifies a broader grant of grandparent visitation rights,as it is loosely written and can be interpreted to allow grandparent visitation rights even whenthe child's family is intact. See generally Shandling, supra note 5, at 119-21 (noting lack ofuniformity among grandparent visitation statutes); supra note 27 and accompanying text(discussing variation among grandparent visitation statutes).


family situations complicated by the death, separation, or divorce ofthe parents.8 4 Today, grandparent visitation statutes are expandingbeyond their original limited scope.' The two most controversialissues in this area are whether grandparents should have the right tovisit grandchildren in an intact family and whether grandparentsshould have the right to visit with grandchildren who have beenadopted.'

A. Grandparent Visitation Statutes and the Intact Family

In some states, grandparent visitation laws limit visitation tononintacte7 or disrupted families.' Several state statutes, however,are broadly written and could be interpreted to permit grandparentsto visit with grandchildren in an intact family.89 This potential

84. See Brown, supra note 17, at 133; Femrndez, supra note 18, at 128 & n.81.85. See Bums, supra note 7, at 60 (noting trend among state legislatures to expand

grandparent visitation rights); see also supra note 8 (citing proposed amendments to stategrandparent visitation statutes).

86. SeeAmy D. Marcus, Grandparents Seek Their Rights in Cour4 WALL ST.J.,June 5, 1991, atB6 (reporting that while majority of grandparent visitation cases involve disrupted or brokenfamilies, increasing percentage of cases regard intact families); see also GRANDPARENT VISITATIONMANUAL, supra note 7, at 34 (reporting that grandparent visitation in intact family is among mostcontroversial situations).

87. For purposes of this Comment, a nonintact family refers to a family that has endureda disruptive event such as death, separation, or divorce.

88. See, e.g., AIuz. REV. STAT. ANN. § 25-337.01 (A) (1)-(2) (Supp. 1993) (providing courtwithdiscretion to grant visitation rights to grandparents if "marriage of parents . . . has beendissolved for at least three months ... [or if a] parent.., has been deceased or missing for atleast three months"); ARK. CODE ANN. § 9-13-103(a) (1) (Michie 1991) (allowing petition forgrandparent visitation "if the marital relationship between the parents of the child has beensevered by death, divorce, or legal separation"); MD. CODE ANN., FAM. LAw § 9-102 (1991)(permitting grandparent visitation petition "[a]t any time after the termination of a marriageby divorce, annulment, or death"); see also Towne v. Cole, 478 N.E.2d 895, 900 (Il1. App. Ct.1985) (finding no visitation right where family has not experienced death or divorce); In reMeek, 443 N.E.2d 890, 891 (Ind. Ct. App. 1983) (finding no cause of action for visitation whereparent is deceased or remains married); McCarty v. McCarty, 559 So. 2d 517, 517-18 (La. Ct.App. 1990) (holding that grandparent has no right to visitation where child's family is intact);Thompson v. Vanaman, 515 A.2d 1254, 1255-56 (NJ. Super. Ct. App. Div. 1986) (finding thatthere must be disruption in child's family for grandparent to have cause of action); Herron v.Seizak, 468 A.2d 803, 805 (Pa. Super. Ct. 1983) (noting that court cannot interfere with intactfamily); Theodore R v. Loretta J., 476 N.Y.S.2d 720, 720-21 (Fam. Ct. 1984) (denyinggrandparent right to visitation in intact family absent extenuating circumstances that wouldjustify intervention); Hawk v. Hawk, 855 S.W.2d 573, 581-82 (Tenn. 1993) (holding that grantinggrandparent visitation rights when family is intact violates privacy interest of parents in child-rearing under Tennessee state constitution). But see ILL. ANN. STAT. ch. 40, para. 607(b) (1) (B)(Smith-Hurd 1989) (broadening, for first time, grandparent visitation rights and allowinggrandparents to petition for visitation without requiring marriage dissolution or death ofparent). The Illinois statute was amended again in 1990 to ban grandparent interference inintact families. ILL ANN. STAT. ch. 750, para. 5/607(b) (1) (Smith-Hurd 1993).

89. See, e.g., ALA. CODE § 30-3-4(c) (1989) (providing that "[a]t the discretion of the court,visitation rights for grandparents... shall be granted... [if a] grandparent is unreasonablydenied visitation.., for a period exceeding 90 days"); CONN. GEN. STAT. ANN. § 46b-59 (West1986) (noting that "[tihe superior court may grant the right of visitation ... to any person..

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expansion of grandparent visitation rights into the intact familyjeopardizes parental autonomy by subjecting intact functioningparents to unwarranted state interference.' Recently, Kentucky'sbroadly written grandparent visitation statute was at issue in King v.King.91 In King, the Supreme Court denied certiorari to a KentuckySupreme Court decision that interpreted the Kentucky grandparentvisitation statute" to allow a child's paternal grandfather to visit withthe child twice weekly against the wishes of the child's married, fit,and natural parents. 3 The Court's decision not to hear this caseand, thus, to allow the Kentucky statute to stand as constitutional, hasbeen hailed as a major advancement in grandparent visitationrights94 because it recognizes grandparents' rights to visit withgrandchildren in intact nuclear families.95

The intriguing aspect of the King decision is that it allows thevisitation rights of grandparents to impinge upon parental autonomy.The King decision permits grandparent visitation even when thechild's parents are fit and happily married, but for one reason or

. [and] shall be according to the court's bestjudgment... and subject to such conditions andlimitations as deems equitable"); KY. REV. STAT. ANN. § 405.021 (Baldwin 1991) (providing that"[tihe circuit court may grant reasonable visitation rights to . . . grandparents . . . if itdetermines that it is in the best interest of the child to do so").

90. See Ward v. Ward, 537 A.2d 1063, 1070 (Del. Fain. Ct. 1987) (acknowledging validreasons for not subjecting intact families to grandparent visitation laws). The court noted:

[P]arents, natural or adoptive, living together as husband and wife are more likely tomake decisions regarding with whom their children associate in a manner that protectstheir children's best interests. Personal animosity towards the other parent and his orher family is less likely to color this visitation decision. Furthermore, parents livingtogether are equally informed regarding the children's needs and desires.

91. 828 S.W.2d 630 (Ky.), cert. denied, 113 S. Ct. 378 (1992).92. KY. REV. STAT. ANN. § 405.021 (Baldwin 1991).93. King v. King, 828 S.W.2d 630, 632-33 (Ky.) (finding that there is no reason to permit

"trivial disagreement between a father and son" to deprive grandchild and grandparent fromdeveloping natural bond), cert. denied, 113 S. Ct. 378 (1992). But see id. at 633 (Lambert, J.,dissenting) (acknowledging that evidence supports parents contention that grandfather "is anoverbearing individual who intruded with impunity upon respondents' family life demonstratingtotal indifference to their wishes"). Mr. King petitioned the court for the right to visit with hisgranddaughter after her parents denied him permission to visit with her. Id. at 631. Mr. Kinghad almost daily contact with the child for sixteen months while she and her parents lived andworked on Mr. King's tobacco farm. Id. at 630. When relations between the grandfather andthe child's parents deteriorated, the parents moved off the farm and did not allow Mr. King tovisit with their child. Id. at 630-31. Accordingly, Mr. King filed a petition for visitation rights.Id. The King decision supports grandparents' position that they should have equal rights tovisitation, regardless of the status of the grandchild's parents. See infra notes 112-16 andaccompanying text (discussing policy arguments in support of absolute right to grandparentvisitation).

94. Bob Dart, Grandparents' Rights Upheld in Court Ruling HOUS. CHRON., Oct. 25, 1992, atA27, available in LEXIS, Nexis Library, Majpap File (reporting that contrary decision by SupremeCourt in Kingwould have jeopardized grandparent visitation rights throughout country).

95. Id.


another, do not want their child to associate with the grandparents.96

The Kentucky statute at issue in King is so broad that its scope islimited only by a nebulous test of what the court believes is in thechild's best interests.9 7 The broad scope of the statute createsserious conflicts with parents' rights to raise their child without stateinterference," and fails to appreciate the potentially detrimentaleffect that such visitations over parental objections may have on achild.' The high value traditionally placed upon parental autonomyin American society0 makes this expansive grant of rights to

96. See King, 828 S.W.2d at 632 (justifying grant of visitation rights to grandfather againstwishes of happily married, fit parents because "a petty dispute between a father and son should[not] be allowed to deprive a grandparent and grandchild of the unique relationship thatordinarily exists between those individuals").

97. KY. REv. STAT. ANN. § 405.021 (Baldwin 1991).98. See supra notes 35-60 and accompanying text (discussing constitutional analysis of

parental rights).99. See Commonwealth ex reL Zaffarano v. Genaro, 455 A.2d 1180, 1181-82 (Pa. 1983)

(refusing grandparents' request for unsupervised visitation with child because hard feelingsexisting between father and grandparents would place child in crossfire between adults); Com-monwealth ex reL Flannery v. Sharp, 30 A.2d 810, 812 (Pa. 1943) (denying grandparentsvisitation rights or custody because visitations, intra-family quarrels, and legal proceeding werecausing child to suffer from nervousness and stomach problems). The Flannery courtdetermined:

[T]he health and welfare of a child must not be shattered in the crossfire ofsupposedly conflicting legal rights as to its custody. Despite the fact that grandparentsmay have become so deeply attached to a child that it will be a real hardship to bedeprived of his society, sympathy for them cannot be permitted to interfere with thebest interest and future welfare of the child.

F/anneiy, 30 A.2d at 812; see also Brown, supra note 17, at 134 (noting that Illinois GeneralAssembly restricted previously liberal grandparent visitation statute and suggesting that becauseof intrusion on parental autonomy and stress on child due to court-imposed visitations, thisdecision was correct one); Sharon F. Ladd, Note, Tennessee Statutory Visitation Rights ofGrandparents and the Best Interests of the Child 15 MEM. ST. U. L. REv. 635, 652-54 (1985) (arguingthat "[i]f the natural parents have a viable marriage, it is not wise to allow parents of eitherparent to bring suit as this could have a devastating effect on the marriage and therefore thechild"); see also Cox v. Stayton, 619 S.W.2d 617, 621 (Ark. 1981) (disallowing grandparentsvisitation rights in intact family because such rights were not expressly provided for in statuteand noting that despite genuine relational link between grandchildren and grandparents, "thesanctity of the relationship between the parent and the child must be the overriding concern").In Cox, the court noted that "[to create new, enforceable rights in grandparents could lead toresults that would burden rather than enhance the welfare of children." Cox, 619 S.W.2d at 621.

100. See supra notes 35-36 (citing cases affirming parental autonomy at common law); see alsoWhite v. Jacobs, 243 Cal. Rptr. 597, 597-98 (Ct. App. 1988) (refusing to allow grandparents tovisit with grandchild against wishes of child's parents and noting that hostility between child'sparents and grandparents resulted in emotionally traumatic visitations for child). The courtfurther noted that even when grandparent visitation is provided for by statute, there is apresumption against allowing such privileges if the parent's object to the visitation. Id. at 598;see also Moore v. Moore, 365 S.E.2d 662, 663 (N.C. Ct. App. 1988) (ruling against allowinggrandparent visitation in intact family because fundamental rights of parental autonomypreclude grant of visitation rights to grandparents), superseded ly statute as stated in Ray v. Ray,407 S.E.2d 592 (N.C. Ct. App. 1991). One commentator, questioning the soundness ofsubjecting parental decisionmaking to court judgment, asked:

Should we be subjecting mutual parental decisions made in a whole marriage toadjudication? Can the courts stand in the position of the parents well enough to

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grandparents highly unusual.This extraordinary grant of visitation rights to grandparents

generally fails to consider the best interests of the child,1"' relyinginstead on traditional and emotional conceptions of the family."0 2

The In re La Russo '0 decision exhibits this reliance on traditionalnotions of family life. In La Russo, a married couple preventedpaternal grandparents from visiting their grandchildren for severalyears. 1

14 This hindrance was the result of a longstanding dispute

between the child's father and grandfather regarding thegrandfather's preferential treatment of the father's sister and thefather's allegation that his mother physically abused him."5 Thecourt overcame this family dissension, and decided that "[t] he merefact that the parents and grandparents have had a falling out and thatanimosity exists between them should not preclude visitation if thecourt finds that visitation would be in the best interest of thechildren." ' 6 The court in La Russo apparently clings to thenostalgic concept of an extended family in which there are differencesof opinion, but whose members are joined together by the commonbond of family unity.' Allegations of physical abuse and court-room battles, however, do not comport with this nostalgic notion ofthe family. It is difficult to comprehend how legally imposedvisitation with the grandparents in this situation could be in thechild's best interest when the visitation places the child in the middleof an emotional minefield. Such visitation rights are especiallytroublesome when, in situations like La Russo, the child has not hadcontact with the grandparents and does not have a close, psychologi-cally beneficial relationship with them.

decide whether the parental judgment is or is not reasonable? Is it in "the bestinterests of the child" per se to question parental decisions in the whole marriage, andto weaken parental authority? Access to courts establishes a certain kind of power.Will the threat of adjudication influence reasonable parental decisions adversely?

Grandparents' Visitation Rights: Hearings on S. Con. Res. 40 Before the Subcomm. on Separation ofPowers of the Senate Comm. on the Judiciay, 98th Cong., 1st Sess. 6 (1983) [hereinafter 1983 SenateHearings] (statement of John M. McCabe, Legislative Director, National Conference ofCommissioners on Uniform State Laws).

101. See Brown, supra note 17, at 147 (arguing that because best interests of child standardis poorly defined in many state statutes, judges have discretion to impose their personal viewsand concerns regarding family structure when considering child's best interests).

102. See, e.g., Brown, supra note 17, at 137-38 (noting that Illinois legislature's debates onwhether to expand grandparent visitation rights focused on emotion and traditional conceptionsof family).

103. 9 Faro. L. Rep. (BNA) 2646 (N.Y. Fain. Ct. Aug. 10, 1983).104. In re La Russo, 9 Fain. L. Rep. (BNA) 2646, 2647 (N.Y. Fain. Ct. Aug. 10, 1983).105. Id.106. Id. at 2648.107. See id. (noting that grandparents had made sincere effort to see grandchildren, had

attended school functions, and had sent gifts).

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Recently, in Hawk v. Hawk,1" 8 the Tennessee Supreme Courtaddressed grandparent visitation rights in an intact family andconcluded that imposing the court's opinion of what is in the bestinterests of the child over the parents' objections is an unjustifiedintrusion into the "protected sphere of family life.""° Instead, thecourt held that when the family is intact there must be a finding ofsubstantial harm to the child, and then the court may levy its ownsubjective opinions of what the best interests of the child de-mands."' By employing this careful two-step analysis, the courtsought to avoid the pitfall of assuming grandparent-grandchildvisitation is always beneficial and to respect parental autonomy."'

1. Arguments in favor of grandparent visitation rights in an intactfamily

The arguments that grandparents voice in response to attempts tolimit visitation rights to nonintact families are twofold. First, limitinggrandparent visitation rights to nonintact families constitutes disparatetreatment of grandparents in violation of the Equal Protection Clauseof the Constitution.!12 For example, some grandparents may beable to petition for visitation if the grandchild's parents are divorcedor if some other event has disrupted the intact family, while othergrandparents cannot petition for visitation solely because thegrandchild's parents have a solid marriage and the family is intact.Grandparents argue that the status of the grandchild's parents shouldnot affect the grandparents' right to visit with their grandchild."'

The second argument that grandparents proffer involves a two-stepanalysis. First, they maintain that the childrearing practices of allparents should be liberated from state interference and that this rightdoes not apply solely to parents in an intact family."4 Typically,

108. Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993).109. Id. at 577.110. Id. at 579.111. Id. at 581.112. U.S. CONST. amend. XIV, § 1 ("No State shall . .. deny to any person within its

jurisdiction the equal protection of the laws."); seeWard v. Ward, 537 A.2d 1063, 1069-70 (Del.Fain. Ct. 1987) (noting petitioner's argument that this differing treatment of grandparents is"an arbitrary and invidious discrimination against one group of grandparents" but holding thatstate had "valid reasons" for decision and treatment was not equal protection violation).

113. See Brown, supra note 17, at 144-45 (discussing grandparents'equal protection argumentin favor of visitation).

114. Frances E. v. Peter E., 479 N.Y.S.2d 319, 322 (Fain. Ct. 1984). The counter argumentthat parents proffer is that grandparents have a derivative right to visitation based on the rightof the deceased or noncustodial parent. Id. Because neither parent in the intact family wantsthe grandparent to be allowed visitation rights, parents contend that the grandparent does nothave a derivative right to visitation. Id.

1994]

THE AMERICAN UNIVERSITY ILAW REVIEW

grandparent visitation statutes only grant visitation upon an eventwhich is disruptive to family unity."' When the court or thelegislature contends that parents who have experienced a disruptiveevent, such as a divorce, separation, or death, are susceptible togreater state interference through statute-created grandparentvisitation rights, the state is making an inappropriate and overinclusivejudgment about the parents' ability to raise their children adequate-ly." 6 In the final step of the analysis, grandparents argue that allstates should treat intact and nonintact families equally and shouldpermit all grandparents to petition for visitation rights.

2. Previous contact and grandparent visitation in the intact family

In granting grandparent visitation rights when the nuclear familyis intact, state legislatures have not consistently or thoroughlyaddressed the time that the grandchild may have spent living in dailycontact with the grandparent and how that should affect a court'sdecision to allow grandparent visitation rights in an intact family."'New York's highest court recently addressed this issue in In re EmanuelS. v. Joseph E.," 8 ruling that grandparents have standing to petitionfor visitation with their grandchildren in an intact family if they eitherhave previously formed a relationship with the grandchildren, or havemade a sincere effort to establish a relationship with the grandchil-dren but were rebuffed by the children's parents."9 Similarly, inMoore v. City of East Cleveland,20 the U.S. Supreme Court held thatwhen grandparents have lived with a grandchild for a significantperiod of time before estrangement, the grandparents may have somerights to continued contact with the child.12 1

Courts generally agree that the goal of grandparent rights

115. See GRANDPARENT VISITATION MANUAL, supra note 7, at 8-9 (noting that mostgrandparent visitation statutes only intervene after divorce or death of parent).

116. See Frances E., 479 N.Y.S.2d at 322. The grandparents argued:This right to be free from state interference... inures to all parents and should haveno greater application to parents who are married and residing together in an "intactfamily." To assert that, as a matter of law, a widowed, divorced, remarried, orunmarried parent is subject to greater state interference than a married parent wouldbe to assert that the former is less fit than the latter to raise his or her own child.

Id.117. GRANDPARENT VISITATION MANUAL, supra note 7, at 32 (noting that few state statutes

provide specific guidelines for determining whether grandparent visitation should be permittedwhen grandchild has spent time living with grandparent). In Minnesota, the state legislaturehas determined that where a minor has lived with the grandparent for at least one year, thegrandparent may petition for visitation privileges. MINN. STAT. ANN. § 257.022 (West 1992).

118. 577 N.E.2d 27 (N.Y. 1991).119. In reEmanuel S. v. Joseph E., 577 N.E.2d 27, 27 (N.Y. 1991).120. 431 U.S. 494 (1977).121. Moore v. City of East Cleveland, 431 U.S. 494, 503-06 (1977).

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legislation is to maintain already existing vital relationships betweengrandparents and grandchildren, not to forge new relationships.122

For example, when the grandparents have provided daily care for thechild for a significant period of time, 12

1 the grandparents may arguethat they have served as a "psychological parent"1 24 to the child anddisruption of this relationship would be psychologically unsettling forthe child."z It is valid to distinguish grandparents' psychologicalrelationship with the child from their biological relationship becausegranting grandparent visitation rights based solely on their biologicalrelationship with the child bases the right of visitation on thegrandparents' best interests instead of on the child's best inter-ests.

26

B. Grandparent Visitation Statutes and Adoption

Courts have held that when a child is adopted, all previous ties withthe child's natural family are abolished.127 State legislatures also

122. See Apker v. Machak, 490 N.Y.S.2d 923, 925 (App. Div. 1985) (denying grandparentsvisitation rights because they had not seen grandchildren in nine years and thus lacked anymeaningful relationship with their grandchildren); Looper v. McManus, 581 P.2d 487,488 (Old.App. 1978) ("Visitation is not solely for the benefit of the adult visitor but is aimed at fulfillingwhat many conceive to be a vital, or at least a wholesome contribution to the child's emotionalwell-being by permitting partial continuation of an earlier established close relationship."); 1982House Hearing, supra note 1, at 70 (statement of Dr. Andre Derdeyn, Director, University ofVirginia Child and Family Psychiatry Training Program) ("Whether grandparent visitation isawarded or not depends on the court's assessment of the value of continuing the child'srelationship with the grandparent weighed against the amount of disruption to the child'simmediate family unit and the amount of animosity the various adults hold for each other.").

123. See, e.g., Kingv. King, 828 S.W.2d 630, 630 (Ky.) (noting that for 16 months while familylived on his farm grandfather had almost daily contact with child), cert. denie, 113 S. Ct. 378(1992); Hawk v. Hawk, 855 S.W.2d 573, 575-76 (Tenn. 1993) (discussing previously frequentcontact between grandparents and child in intact family, including weekly overnight visits).

124. SeeJOSEPH GOLDSTEIN ET AL., BEYOND THE BEST INTERESTS OF THE CHILD 98 (1979)(defining "psychological parent" as "one who, on a continuing, day-to-day basis, throughinteraction, companionship, interplay, and mutuality, fulfills the child's psychological needs fora parent, as well as the child's physical needs" and noting that "[t]he psychological parent maybe a biological... parent ... or any other person").

125. See Derdeyn, supra note 7, at 278 (contending that "[i]f decisions were truly guided bythe principle of maintaining relationships with psychological parents," grandchild would remainwith grandparent to maintain established psychological relationship). But see Thompson et al.,supra note 1, at 1220 (commenting that although concept of "psychological parent" has beenvaluable construct in study of child development, institutionalizing such concept may fosterchanges in family functioning).

126. See Barbara S. Hughes, The Effect of C.G.F. and Section 48.925 on Grandparental VisitationPetitions, WISc. LAw., Nov. 1992, at 13, 14 (questioning "whether the proliferation of statutesgranting third-party rights to visitation-based upon the third-party's interests rather than thechild's relationship with that party or the parents constitutionally protected rights-is truly thebest interest of the children and families involved").

127. SeeExparteBronstein, 434 So. 2d 780,781-82 (Ala. 1983) (noting that in adoption, stateemploys patens patriae authority to create status that severs all rights of natural parents),superseded by statute as stated in Mills v. Parker, 549 So. 2d 97 (Ala. CL App. 1989); Hill v. Garner,561 S.W.2d 106, 107-08 (Ky. Ct. App. 1977) (holding that termination of parental rights

THE AMERICAN UNIVERSrIY LAW REVIEW [Vol. 43:563

have determined that adoption statutes should supersede visitationstatutes.1 28 As a practical matter, this abdication of rights by thenatural family is not greatly contested when the child is placed foradoption as an infant.129 With the advent of increased stepchildadoption and adoption of older children, automatic termination ofnatural family rights sometimes seems counter to the best interests ofthe child. 30 As a result, some states have created an exception tothe rule of automatic termination of rights upon adoption.1 3 1

pursuant to statute permanently severs relationship of parent and child); Bowling v. Bowling,631 S.W.2d 386, 391 (Tenn. 1982) (determining that adoption of child by maternalgrandparents would sever prior legal relationships and end court-ordered visitation rights inpaternal grandparents); see also In re Gardiner, 287 N.W.2d 555, 558 (Iowa 1980) (advancing twopolicy reasons for denying grandparent's rights upon adoption: (1) grandparent visitationagainst wishes of adoptive parents would never be in "best interests of the child;" and (2)grandparents' visitation rights are derivative of parents' rights and, thus, when parents' rightsare terminated, grandparent rights are also terminated), superseded by statute as stated in In reA.C.,428 N.W.2d 297 (Iowa 1988);Jouett v. Rhorer, 339 S.W.2d 865, 868 (Ky. 1960) (noting "publicpolicy demands that an adoption shall carry with it a complete breaking off of old ties").

128. See, e.g., ARIZ. REV. STAT. ANN. § 25-337.01(d) (1993) ("All visitation rights grantedunder this section automatically terminate if the child has been adopted or placed foradoption."); CAL CIV. CODE § 197.5 (c) (West 1983 & Supp. 1993) ("Any visitation rights grantedpursuant to this section prior to the adoption of the child shall be automatically terminatedupon such adoption."); MINN. STAT. ANN. § 257.022(3) (West 1992) ("Any visitation rightsgranted pursuant to this section prior to the adoption of the child shall be automaticallyterminated upon such adoption."); TENN. CODE ANN. § 36-6-301 (b) (1991) ("This section shallnot apply if the child has been adopted by a person other than a stepparent. Any visitationrights granted pursuant to this section prior to the adoption shall be automatically terminatedupon such adoption."); VT. STAT. ANN. tit. 15, § 1016 (1989) ("When a child subject to an orderunder this chapter is later adopted, the order under this chapter expires except when theadopting parent is a stepparent, grandparent or other relative of the child."); see also Wilson v.Wallace, 622 S.W.2d 164, 165-66 (Ark. 1981) (holding that adoption severs all ties between childand natural relatives); Hicks v. Enlow, 764 S.W.2d 68, 73 (Ky. 1989) (dismissing grandparents'claim of visitation rights when child's parents were killed in auto accident and child was adoptedby cousin); Smith v. Trosclair, 303 So. 2d 926, 927 (La. Ct. App. 1974) (determining thatadoption legally severed relationship between child and natural grandmother), aftd 321 So. 2d514 (La. 1975); Appeals Court Rules in Visitation Case UPI, Dec. 17,1992, available inLEXIS, NexisLibrary, Wires File (discussing ruling that Ohio courts have no authority to grant grandparentsvisitation rights after child has been adopted).

129. See Fernindez, supra note 18, at 119 (noting that in past, many children placed foradoption at infancy were illegitimate, and because of young age of children, terminating ties tonatural families was logical).

130. See Nathan, supra note 18, at 635-36 (indicating that because older children are morelikely to have meaningful relationships with natural family members, automatic termination ofall visitation rights may be traumatic for child and may clash with child's best interests). But cfHood v. Connaughton, 426 N.Y.S.2d 574, 575 (App. Div. 1980) (holding that grant of rights tograndparents to visit deceased daughter's children was overextensive where visits would hinderchildren's adjustment to new family); Theimer, supra note 7, at A4 (noting that mother thoughther child's visits with paternal grandparents after adoption of child by stepfather would beconfusing to child).

131. See, e.g., ARIZ. REV. STAT. ANN. § 25-337.01(D) (Supp. 1993) (providing that automatictermination of visitation rights provisions do not apply "[ilf the child is removed from anadoptive placement" or if child adopted "by the spouse of a natural parent if the natural parentremarries"); MWNN. STAT. ANN. § 257.022(3) (West 1992) (eliminating automatic terminationwhere child is adopted by relative or stepparent); TENN. CODE ANN. § 36-6-301 (a) (1991)(eliminating automatic termination where child is adopted by relative or stepparent); see also


In H.E v. TE,'32 the Supreme Court denied certiorari andthereby upheld the Wisconsin Supreme Court decision that broadlyinterpreted grandparent visitation rights in the realm of stepparentadoption. 3 This case involved paternal grandparents who wantedthe right to visit their deceased son's child."M The child's mother,upon her remarriage and the child's adoption by the stepfather,denied visitation to the grandparents."3 5 The Wisconsin SupremeCourt allowed the grandparents continued visitation rights despiteadoption by the stepparent.136 The court contrasted the situationin H.E with the rights of grandparents to visit the child of a living sonwho terminated his parental rights. 3 7 In H.E, the child's fatherremained the child's parent despite his death.3 8 As the father hadnot voluntarily relinquished his rights, the grandparents' right tovisitation likewise had not been relinquished.19 Thus, H.E takes astep toward recognizing that grandparents' right of visitation withgrandchildren is not exclusively tied to the presence of the par-ents.

140

In H., the court addressed grandparent visitation rights in the

Johnson v. Fallon, 181 Cal. Rptr. 414, 418-19 (Ct. App. 1982) (holding that in all adoptivesituations, court is to weigh dual considerations of whether granting grandparent visitation is inchild's best interests and, if so, whether grant of grandparent visitation would unduly impedeadoptive relationship); Hicks v. Enlow, 764 S.W.2d 68, 71-73 (Ky. 1989) (allowing stepparentadoptions as sole exception to Kentucky statute terminating all connections with adopted child'snatural family); People exreL Sibley v. Sheppard, 429 N.E.2d 1049, 1051-52 (N.Y. 1981) (holdingthat extinguishing grandparent visitation rights after adoption is overbroad reading of statute'stermination provision and would disrupt court's obligation to protect child's best interests, andindicating that state had created adoptive relationship through statute and, therefore, shouldbe able to determine extent of contact child should have with natural family); infra notes 133-47and accompanying text (discussing move away from traditional termination of rights uponadoption).

For examples of statutes that do not provide for automatic termination, see ALA. CODE § 30-3-4 (1989); COLO. REV. STAT. § 19-1-117 (Supp. 1993); N.Y. DOM. REI LAW § 72 (McKinney 1989);OKLA. STAT. ANN. tit. 10, § 5 (West 1987 & Supp. 1993).

132. 483 N.W.2d 803 (Wisc.), cert. denied, 113 S. Ct. 408 (1992).135. See H.F. v. T.F., 483 N.W.2d 808, 804-06 (Wisc.) (finding that deceased father continues

to be parent and that, accordingly, grandparents' rights are not terminated upon child'ssubsequent adoption), cert. denied 113 S. Ct. 408 (1992).

134. Id. at 804.135. Id.136. See id. at 805-06 (noting Wisconsin Legislature's intent to maintain grandparent-

grandchild relationships after adoption).137. Id. at 805 (comparing H.F. with Soergel v. Raufnan, 453 N.W.2d 624 (Wisc. 1990)).

In Soerge, the father severed all of his rights to his minor child. Soerge, 453 N.W.2d at 624. Thecourt in H.F found that the circumstances in H.F. were qualitatively different than those inSoerge, where the father voluntarily abandoned his rights to his child. H.F., 483 N.W.2d at 805.

138. H.F., 483 N.W.2d at 805.139. Id. at 805-06.140. See Nathan, supra note 18, at 647 (noting that termination of grandparent visitation

rights upon adoption of grandchild unfairly penalizes grandparents, who did not cause adoptionor desire to terminate relationship with child).

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specific context of adoption by a stepparent. 4' This decision doesnot provide guidance on more complicated adoption situations, suchas adoption by someone other than a stepparent 4 2 or adoptionwhen the other natural parent is still living and agrees to theadoption" and to the denial of the grandparents' visitation rights.In these instances, whether grandparents can petition for visitationdepends on what the court perceives to be the basis for grantinggrandparent visitation rights. Two theories form the basis forgranting grandparent visitation. First, the derivative rights theorybases grandparents' right to visitation as a derivative of the parents'legal relationship with the child.144 The second more commonlyaccepted theory bases grandparent visitation on the statutory rightwhich focuses on the grandparents past relationship with thechild.145 As the law has evolved and attempted to focus on the bestinterests of the child, grandparents' right to visitation has beenincreasingly based on the grandparents' prior relationship with thechild and not on the grandparents' derivative right. 46 With domes-tic relations becoming more complex and adoption and grandparentvisitation statutes developing in conflict, courts and legislatures can nolonger adhere to the simplistic notion that all of a child's ties with his

141. See supra notes 132-39 and accompanying text.142. See, e.g., Hicks v. Enlow, 764 S.W.2d 68, 73 (Ky. 1989) (denying grandparents visitation

rights to child adopted by cousin after accidental death of child's parents). In Lingwall v.Hoener, 483 N.E.2d 512, 512 (Ill. 1985), the Illinois Supreme Court wrote thoughtfully aboutthe various interests at stake where grandparent visitation arises in the context of adoption:

Absent an adoption of an infant by strangers, there is no reason to assume from theoutset that termination of a grandparental relationship is in an adopted child's bestinterest; nor is there any reason to view grandparental visitation as an "unnecessaryintrusion" in the lives of a reconstituted family. Of course the child's best interest isnot entirely severable from the interests of the parents in a reconstituted family, andcertainly the parents' attitude toward grandparental visitation is an important factor forthe courts to consider in determining whether such visitation should be ordered.However, their attitude is not the only, or even the paramount, consideration. Suchfactors as the length and quality of the relationship between grandparents and child,the child's need for continuity in his relationships with people who may have playeda significant nurturing role in his life, and the effect of the termination of the child'srelationship with the parent who has relinquished his rights and responsibilities mustalso be considered. These factors will certainly outweigh the opposition of parents thatis based on the mere inconvenience to them of such visits, or on their animositytoward the child's other natural parent.

Id. at 516-17.143. See, e.g., Soergelv. Raufman, 453 N.W.2d 624,627-28 (Wisc. 1990) (concerning adoption

of child while natural father is alive and natural father relinquishes all rights and responsibilitiesregarding child).

144. See Ferndndez, supra note 18, at 118-22.145. The second theory is the more commonly accepted view and provides that visitation is

a statutory right rather than a biological one. See Cox v. Stayton, 619 S.W.2d 617, 620 (Ark.1981); In re Meek, 443 N.E.2d 890, 891 (Ind. Ct. App. 1983).

146. See Fern.ndez, supra note 18, at 118-22. But see Rudolph v. Floyd, 832 S.W.2d 219, 220(Ark. 1992) (noting that grandparent rights are derivative of their child's parental rights).

586


or her natural family cease upon adoption. 147

IV. THE FUTURE OF GRANDPARENT VISITATION RIGHTS

As the American family continues to evolve and change in form,stepparents, extended family, and caretakers will wish to obtain rightsto visit with the child.148 To accommodate the new needs of theAmerican family, the law too must change. Lawmakers mustapproach this change in policy carefully because family law both"define [s] and institutionalize [s] family structure and roles."'4

Legislatures have initiated a change in family law policy through theenactment of grandparent visitation statutes. The variation amongthese statutes, and the lack of guidance from Congress or theSupreme Court, however, has created difficulties for both parents andgrandparents in determining their respective rights regarding thechildren. These inconsistencies and ambiguities have created

147. In Lingwall v. Hoener, 483 N.E.2d 512, 516 (Ill. 1985) the court noted:Different issues are involved in determining the best interest of the child in anadoption by strangers and in an adoption by a natural parent and a new spouse. Inadoptions involving strangers, the primary policy concern has traditionally been withmaximizing the pool of potential adoptive parents by guaranteeing, through thetermination of the rights and responsibilities of the natural parents, that the adoptiveparents will have "the opportunity to create a stable family relationship free fromunnecessary intrusion .... "

In adoptions by a natural parent and that parent's new spouse, the policy concernwith maximizing the pool of adoptive parents is greatly diminished, since the act ofbecoming a stepparent most often occurs without regard to adoption and in spite ofregular visitations between the child and the noncustodial natural parent.

Id.148. The expansion of those who wish to obtain child visitation rights has already begun and

is being addressed by legislatures. See, e.g., ALASKA STAT. § 25.24.150 (1991) (providing visitationfor "a grandparent or other person if that is in the best interests of the child"); CONN. GEN.STAT. ANN. § 461>59 (West 1986) (allowing visitation with child to "any person" whom the courtdeems appropriate); ILL. ANN. STAT. ch. 750, para. 5/607(b) (1) (Smith-Hurd 1993) (providingvisitation privileges to "grandparents, great-grandparents, or sibling of any minor child"); ME.REV. STAT. ANN. tit. 19, § 752(6) (West Supp. 1993) (awarding "reasonable rights ofcontactwitha minor child to any [third] persons"); VA. CODE ANN. § 20-107.2 (Michie Supp. 1993) (granting.grandparents, stepparents or other family members" visitation with children); WASH. REV. CODEANN. § 26.09.240 (Supp. 1992) (providing visitation rights "for a person other than a parentwhen visitation may serve the best interest of the child"); Wis. STAT. ANN. § 767.245(4) (West1993) (allowing petition for visitation from "grandparent, greatgrandparent, stepparent orperson who has maintained a relationship similar to a parent-child relationship with the child");see also Simpson v. Simpson, 586 S.W.2d 33, 35-36 (Ky. 1979) (allowing stepparent to have fullhearing to establish whether she should have visitation privileges with stepchild whom she caredfor since child was 17 months old and suggesting that visitation may be in order). But seeHendershot v. Hendershot, 785 S.W.2d 34, 35-36 (Ark. Ct. App. 1990) (rejecting great-aunt'spetition for visitation with child and refusing to extend grandparent visitation rights to great-aunt).

149. Thompson et al., supra note 1, at 1217 (noting that poorly conceived legal interventioncan provide greater problems than no policy at all); see also Derdeyn, supra note 7, at 282(noting that unlike other areas of family law, which codify social change, grandparent visitationlegislation is creating changes in family structure and operation).

588 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 43:563

particular hardships for the children caught in a family tug-of-war.Although the courtroom is not the ideal foram to resolve familydisputes,5 ' it has become the last resort for the settlement ofgrandparent visitation disputes. To address this problem, statelegislatures must develop and enact a more consistent set of visitationlaws.' Thus, all the states and the District of Columbia need towork together to construct and adopt a model grandparent visitationstatute.

5 2

Although many grandparents and their supporters suggest that afederally mandated statute would create uniform grandparent

150. See, e.g., 1991 House Hearing, supra note 3, at 14 (statement ofJohn H. Pickering, Chair,Commission on Legal Problems of the Elderly, American Bar Association) (commenting thatintrafamily conflicts are "emotionally wrenching; litigating them may intensify the emotions andcreate great problems for the grandchildren at issue"); 1983 Senate Hearings, supra note 100, at5 (statement ofJohn M. McCabe, Legislative Director, National Conference of Commissionerson Uniform State Laws) (commenting that courts of law are poorly equipped to adjudicatecurrent domestic relations issues and questioning whether it is prudent to add grandparentrights cases to already overloaded court dockets); 1982 House Hearing, supra note 1, at 16(statement of Mr. and Mrs. Max Chasens, grandparents) ("Pity the poor judge . . . whoSolomon-like, must carve up a child's time between warring factions that have difficulty passinga civil word between them. The best solution ... is one worked out not by the judge, but bythe litigants.") (quoting Alice Eckerson, Grandparents Fght for Visiting ights, ATL CITY PRESS,Apr. 13, 1982, at 10); see also 1991 House Hearing; supra, at 3 (statement of Pat Slorah, grandpar-ent) (commenting that judicial resolution of grandparent visitation disputes has replaced roletraditionally fulfilled by religious leader, older family member, or leader of community);GOLDSTEIN ET AL, supra note 124, at 117. Goldstein et al. write:

We reasoned, always from the child's point of view, that custodial parents, not courtsor noncustodial parents should retain the right to determine when and if it is desirableto arrange visits. We took... this position because it is beyond the capacity of courtsto help a child to forge or maintain positive relationships to two people who are atcross-purposes with each other because, by forcing visits, courts are more likely toprevent the child from developing a reliable tie to either parent [or grandparents];and because children who are shaken, disoriented, and confused by the breakup oftheir family need an opportunity to settle down in the privacy of their reorganizedfamily with one person in authority upon whom they can rely for answers to theirquestions and for protection from external interference.

GOLDSTEIN ET AL, supra note 124, at 117.151. Dr. Andre Derdeyn discussed one problem with setting firm regulations regarding

grandparent visitation statutes in 1982 House Hearing; supra note 1, at 72, where he noted:[E]stablishing legislation will not adequately solve [this] problem[] [of grandparentvisitation rights] ... in this area, and the area of family law as a whole, I see too manyinstances where today's solution becomes tomorrow's problem .... I do not think thatthe major solution is going to come out of the legal system. I do not see how it can.These are not legal issues.

Id.152. See 1982 House Hearing, supra note 1, at 76-77 (statement ofJudith Areen, Professor of

Law, Georgetown University Law Center, and Professor of Community and Family Medicine,Georgetown University Medical Center) (commenting that uniform model statutes have beenused successfully in other areas of family law). Professor Areen also noted that while only sevenstates had adopted the Uniform Model Divorce Act (UMDA), "[iut has been more influentialthan this number suggests... for it has been a source of both policy and language for manystate legislatures." Id. at 83.


visitation rights, that option is impossible under the Constitution.15

Article 1, Section 8 of the Constitution enumerates the areas in whichCongress may legislate.'54 Family matters and grandparent visitationdo not fall within any of Congress' enumerated powers. Under theTenth Amendment to the Constitution, all powers not explicitlydelegated to Congress are reserved to the States; 155 thus, grandpar-ent visitation is in the domain of state control.

While a model statute seems ideal in theory, it is a difficultproposition to implement because Congress only has two indirectavenues available to encourage such changes. These options includepreconditioning the receipt of federal funds on the adoption of auniform grandparent visitation statute or establishing a resolution onthe subject to encourage states to create a uniform statute. 56

Preconditioning the receipt of federal funding on compliance withcertain federal standards cannot succeed in the realm of grandparentvisitation. Currently, there is no federally funded program relating tovisitation laws, and, thus, no nexus exists between federal funds andgrandparent visitation. 57 Congress' attempt at the second indirectapproach, a nonbinding congressional resolution, has met with littlesuccess. 1

58

153. 1982 House Hearing supra note 1, at 76-77 (statement ofJudith Areen, Professor of Law,Georgetown University Law Center, and Professor of Community and Family Medicine,Georgetown University Medical Center). Professor Areen noted:

On the one hand, both the variation in, and relatively recent date of, State legislativeprotection for grandparent visitation suggest it would be easier if we had a single,national standard. On the other hand, child custody matters have traditionally beenleft to the States. The one Federal statute that touches this area was explicitly intendedto avoid inconsistent decisions by the courts of two or more States involving thecustody of one child. The lack of Federal standards governing custody decisionsreflects an important constitutional constraint: even if Congress wanted to act, it doesnot appear to have the constitutional authority to mandate standards for child custodyor visitation.

Id.154. U.S. CONST. art. I, § 8.155. U.S. CONST. amend. X ("The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to thepeople.").

156. 1991 House Hearing supra note 3, at 200-03 (citing GINA M. STEPHENS & GLORIA SUGARS,CRS REPORT FOR CONGRESS: LEGAL OVERVIEW OF GRANDPARENT VISITATION RIGHTS 14-17 (1991)[hereinafter CRS REPORT] (discussing fact that Congress does not have authority to legislate onfamily law questions, and that accordingly, it must use indirect approaches such as nonbindingresolutions and conditioning of federal funds on compliance to affect such questions).

157. CRS REPORT, supra note 156, at 16 (discussing fact that Congress does not havepreconditioning federal funding available in area of grandparent visitation because there is nofederal program relating to visitation to which to link funds). Additionally, if substantial federalfunds were preconditioned to the adoption of a model grandparent visitation statute, it mightviolate the Constitution by encroaching upon the states' rights under the Tenth Amendmentto legislate on non-enumerated topics. Id.

158. See S. Con. Res. 40, 98th Cong., 1st Sess. (1983) (enacted); see also CRS REPORT, supranote 156, at 14-15 (discussing feasibility of nonbinding congressional resolutions in family law).

THE AMERICAN UNVERsrrY LAW REviEW [Vol. 43:563

The uniformity a model statute would provide is necessary to ensurejust enforcement of visitation rights. Currently, when a court grantsgrandparents a right of visitation, that right is enforceable only in thestate in which it is granted. If the child's family moves to anotherstate, the grandparent may have to file a new lawsuit to obtainvisitation. A model statute with a uniform enforcement provisionwould eliminate this problem.

In formulating a model statute, the states must draft the provisionsto benefit the child.159 Although it may be beneficial for oldergenerations to have contact with their grandchildren, the statesshould not use the statute to give "the aged their moral rights."' 6°

This Comment suggests that visitation is a state-conferred privilege,not an absolute right. 6' For this reason, a model statute shouldhold the best interests of the child paramount.'62 Thus, the statuteshould provide a procedural vehicle through which a grandparent canapply to a court for visitation rights.'63 The court should then applya statutorily defined test to determine whether visitation"6 with the

159. See Thompson et al., supra note 1, at 1220 (contending that assessment of whethervisitation is in child's best interests often depends more on intuitive judgments of grandparents'"fitness" than on child-centered concerns).

160. 1982 House Hearing, supra note 1, at 15 (statement of Mrs. Gerrie Highto, grandmother).161. See 1983 Senate Hearings, supra note 100, at 6 (statement ofJohn M. McCabe, Legislative

Director, National Conference of Commissioners on Uniform State Laws) (suggesting that whilegrandparent visitation "has been proposed in terms of grandparents' rights... grandparentsmay receive what may be characterized as a privilege more than a right").

162. The doctrine ofparenspatriaeis the basis for considering the best interests of the childas the paramount issue in granting grandparent visitation rights. By looking after the child'swelfare, the state grants grandparents visitation with the child because the state has determinedthat such contact is in the best interests of the child. See Roberts v. Ward, 493 A.2d 478, 481(N.H. 1985) ('[T]he superior court, as an instrumentality of the state, may use its patens patriaepower to decide whether the welfare of the child warrants court-ordered visitation withgrandparents to whom close personal attachments have been made."); see also 1982 HouseHearing, supra note 1, at 76 (statement ofJudith Areen, Professor of Law, Georgetown UniversityLaw Center, and Professor of Community and Family Medicine, Georgetown University MedicalCenter) (underscoring that because excessive psychological turmoil for even one child isunacceptable, it is important to make visitation decisions in context of parties involved).

163. See N.Y. DOM. IEL. LAW § 72 (McKinney 1989) (providing that grandparent visitationstatutes are "not intended to give grandparents an absolute or automatic right of visitation but,rather was designed to establish a procedural vehicle through which grandparents might assertthat visitation of the child or children is warranted").

164. 1991 House Hearing, supra note 3, at 29 (statement of John H. Pickering, Chair,Commission on Legal Problems of the Elderly, American Bar Association) (asserting that highlydefined grandparent visitation guidelines both protect child and family and preventjudges fromoverlooking relevant factors). The term 'visitation" is expansive, and usually denotes a custodialinterest held by a noncustodial parent. JUDrrH C. AREEN, FAMILY LAW: CASES AND MATERIALS1301 (3d ed. 1992). This broad term may cause some parents to fear that the courts are takingsome "right" from them and granting it to the grandparents. Perhaps, what grandparentsrequest can be more loosely defined as "access" to their grandchildren. Id. When grandparentsand grandchildren live far apart "access" may entail phone calls, letters, and occasional visits.Id. Thus, it may be more appropriate and conciliatory to substitute the term "access" for themore tainted term "visitation." This solution may assist grandparents secure the desired multi-


grandparent would be in the best interests of the child.To ensure uniform application of the law, standard criteria must

exist so that judges throughout the United States have uniformguidelines to follow in determining the best interests of the child.165

These guidelines should allow courts to consider each family situationindependently. The guidelines, for example, should direct courts toconsider the nature of the relationship between the grandparent andthe child; if the relationship was a nurturing, caring relationship towhich the child was accustomed, the court should not arbitrarily severthe relationship due to adoption" or family conflict. 67 Thecourt should also consider the relationship between the grandparentsand the child's parents. If the relationship is extremely volatile,allowing the grandparents visitation rights may place the child in themiddle of an emotional battleground and not serve the child's bestinterests." Finally, when both parents do not wish for the grand-parents to have contact with the child, the court should respect theirright of parental autonomy.'69

Because courts are not the ideal domain for settling issues asfraught with emotion as visitation,170 a model statute should requirethat the parties involved in a visitation dispute attempt some type of

generational contact, and ease the apprehensions of parents who feel their rights are beingjeopardized by an expansive grant of "visitation." Id.

165. See Wilentz, Goldman and Spitzer Make Statement Regarding Senate Bill 774, PR NEWSWIRE,Jan. 5, 1993, available in LEXIS, Nexis Library, Wires File (noting that central problem in draftof New Jersey grandparent visitation statute is lack of standards or criteria to determineapplication of grandparent visitation).

166. SeeLingwall v. Hoener, 483 N.E.2d 512, 516-17 (ill. 1985) (reporting that "child's needfor continuity in his relationships with people who may have played a significant nurturing rolein his life, and the effect of the termination of the child's relationship with the parent who hasrelinquished his rights and responsibilities must also be considered"); People ex rel. Sibley v.Sheppard, 429 N.E.2d 1049,1052 (N.Y. 1981) (noting that "[b]y enacting [the visitation statute],the Legislature has recognized that, particularly where a relationship between the grandparentsand the grandchild has been established, the child should not undergo the added burden ofbeing severed from his or her grandparents, who may provide the natural warmth, interest, andsupport that will alleviate the child's misery"); see also supra notes 127-47 and accompanying text(discussing grandparent visitation in the context of adoption).

167. Seesupranotes 91-107and accompanying text (discussinggrandparentvisitation disputesresulting from intrafamily conflict).

168. See 1982 House Hearing, supra note 1, at 70 (statement of Dr. Andre Derdeyn, Director,University of Virginia Child and Family Psychiatry Training Program) (recognizing that courtsdo not fully comprehend significant and potentially destructive effects that loyalty conflicts canhave on children, regardless of whether it is conflict between two parents or parents andgrandparents). But see Lo Presti v. Lo Presti, 355 N.E.2d 372, 374 (N.Y. 1976) (suggesting thatif animosity between parents and grandparents were sufficient reason to deny grandparentsvisitation, then grandparent visitation statutes would accomplish very little, because withoutacrimony, visitation would have been arranged by mutual agreement among parties).

169. See supra notes 35-60 and accompanying text (analyzing common-law protection andlimitations of parental autonomy).

170. See supra note 150 and accompanying text.

THE AMERICAN UNrvERSITy LAW REVIEW [Vol. 43:563

mediation procedure before bringing the case before a judge.71

Such a requirement will likely reduce the trauma for the child, reduceintrafamily litigation, and benefit the parties involved by encouraginga conciliatory arrangement that does not require the enforcementauthority of a judge.172 Additionally, the court should assign thechild separate counsel, a guardian ad litem,173 to protect the child'sinterests and to keep the battle over visitation from becoming a legaland emotional tug of war. Both the parents and grandparents shouldshare the expense of a guardian ad litem. This additional measure willensure that the best interests of the individual child are promotedthroughout the process.174

V. MODEL GRANDPARENT VISITATION STATUTE

Proposed model laws have had a major impact on the develop-

171. 1982 House Hearing, supra note 1, at 74 (statement of Judith Areen, Professor of Law,Georgetown University Law Center, and Professor of Community and Family Medicine,Georgetown University Medical Center) (noting that mediating solution to visitation dispute onprivate basis is preferable to going before judge); see also id. at 105 (statement of Richard S.Victor, attorney) (suggesting counseling in visitation disputes and recommending that parties'willingness to cooperate in such procedure be considered by judge if attempts to reconcile arenot satisfactory, so that no single party can "control the proceedings by blatant avoidance ofattempts to reconcile the dispute").

172. See GRANDPARENT VISrTATION MANUAL, supra note 7, at 126-27 (describing benefits ofmediation). The ABA handbook explains:

Mediation fosters values of great importance in the resolution of family disputes:privacy and self-determination. One advantage of mediation is that it does not takeaway any legal rights.., but it does add new possibilities for lasting solutions to familyproblems. Grandparent visitation disputes... often cannot be resolved by a singlecourt hearing. But a mediated settlement, reached after intensive communication andcompromise between the parties, is more likely to survive over time. Mediation expertssuggest that referral is best done in the early stages of the legal dispute. Use of theadversarial system tends to exacerbate the family dispute and further harden divisionsbetween the parties. Mediating the dispute at any point prior to a hearing on themerits will certainly save the parties, and especially the children who may be called totestify, the agonizing emotional experience of undergoing a trial involving sensitiveprivate matters.

Id.173. A guardian ad litem is usually an attorney or social worker appointed by the court to

speak for the child's well-being. HOMER H. CLAR, JR., THE LAW OF DOMESTIC RELATIONS IN THEUNITED STATES 795 (2d ed. 1988).

174. See Bahr v. Galonski, 257 N.W.2d 869, 874 (Wisc. 1977) (discussing value of guardianad litem in custody proceedings). The Wisconsin Supreme Court explained the reasons forappointing a guardian ad litem:

The requirement that the children have independent legal representation does not inany way suggest that the parents or the trial court were unmindful of the children'swelfare. Rather, it reflects the conviction that the children are best served by thepresence of a vigorous advocate free to investigate, consult with [the children] atlength, marshal evidence, and to subpoena and cross-examine witnesses. The judgecannot play this role. Properly understood, therefore, the guardian ad litem does notusurp the judge's function; he aids it.


ment of family law. Individual states often incorporate these modellaws into existing statutes or adopt them in their entirety.17 Tohelp maintain the political viability of a model statute, each state musthave the opportunity to participate in its creation. 7 As this Com-ment has recommended, the states should create a model grandpar-ent visitation statute that individual states can adopt or use as a basisfor formulating or amending their current grandparent visitationstatutes. To encourage this process, this Comment proposes thefollowing model grandparent visitation statute:1 77

Preambl. The goal of this statute is to maintain beneficial andsubstantial relationships that grandchildren have with theirgrandparents. Any benefit that grandparents may derive from theimplementation of this statute is secondary.

§I(a) Grandparents may apply to the court of general jurisdiction

over family matters or domestic relations for visitation privilegeswith their grandchildren.

(b) Any grandparent shall have the right to intervene in anaction involving the guardianship or custody of the child for thepurpose of obtaining the privilege to visit with the child.

§2Upon petition for visitation, the court shall initiate professional

mediation among the grandparent(s) and the child's legalparent(s) in an effort to create an amicable visitation agreementthrough communication among the parties, to diminish animosity

175. See CRS REPORT, supra note 156, at 204 (noting that because of several controversialelements, only eight states have adopted Uniform Marriage and Divorce Act, but that all stateshave adopted Uniform Child Custody and Jurisdiction Act); 1982 House Hearing, supra note 1,at 77 (statement of Judith Areen, Professor of Law, Georgetown University Law Center, andProfessor of Community and Family Medicine, Georgetown University Medical Center)(commenting that Uniform Marriage and Divorce Act has had impact on development of familylaw at state level); see also 1983 Senate Hearings, supra note 100, at 3-4 (statement of John M.McCabe, Legislative Director, National Conference of Commissioners on Uniform State Laws)(stating that primary activity of National Conference of Commissioners on Uniform State Laws(NCCUSL) is to review all state family law and to propose uniform laws where need exists). TheNCCUSL has developed a variety of uniform statutes, including the Uniform Marriage andDivorce Act, the Uniform Reciprocal Enforcement of Support Act, the Uniform Child CustodyJurisdiction Act, the Uniform Parentage Act, the Uniform Recognition of Foreign Divorces Act,the Uniform Marital Property Act, and the Uniform Premarital Agreement Act. Id. at 3-4.

176. See 1982 House Hearing, supra note 1, at77 (statement ofJudith Areen, Professor of Law,Georgetown University Law Center, and Professor of Community and Family Medicine,Georgetown University Medical Center) (noting positive political aspects of creating modelstatute with representatives from each state).

177. The proposed model grandparent visitation statute is not so much a radical departurefrom the norm as it is a clear enunciation of factors to consider in making a fair determinationof visitation rights. By endorsing uniform adoption of a model grandparent visitation statute,states would not be inhibited from experimenting with and altering the elements of the statuteto better fit the individual state's needs. To the contrary, states would have a common sourcefrom which to derive policy and statutory elements.

1994]

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among the parties to the greatest extent possible, and to reducetrauma for the child involved. 178

§3If reasonable mediation efforts fail, the case may be brought

before ajudge. Where circumstances demonstrate that it would bein the best interests of the child to grant grandparent(s) visitationprivileges, such privileges as the court and other appropriateprofessional consultants deem reasonable will be granted."

§4Where the child has lived peaceably with the grandparent(s) for

more that twelve consecutive months within the five year periodpreceding the grandparents (s)' application for visitation privileges,there will be a rebuttable presumption in favor of grantinggrandparent visitation rights."s

§5In determining the best interests of the child, the court shall

consider the following factors and provide written findingsaccordingly:

(a) the love, affection, and other emotional ties that existbetween the grandparent(s) and the child;"8'

(b) the nature and quality of the relationship between thegrandparent(s) and the child, the length of time that suchrelationship has existed, and the desirability of maintaining thatrelationship;'

8 2

178. 1982 House Hearing, supra note 1, at 74 (statement of Judith Areen, Professor of Law,Georgetown University Law Center, and Professor of Community and Family Medicine,Georgetown University Medical Center) (observing that private mediation is always preferableto trial resolution); see also id. at 87, 105 (statement of Richard S. Victor, attorney) (stating thatfamilies will seek voluntary reconciliation of their disputes when legislation providesgrandparents with ability to seek court enforcement of their rights and recommending thatlegislation prescribe mandatory counseling to assist families in resolving visitation disputes). Seegenerally GRANDPARENT VISITATION MANUAL, supra note 7, at 121-27 (advocating mediation as partof settlement of grandparent visitation disputes).

179. CAL. CIV. CODE § 4351.5(h) (West 1983 & Supp. 1993) (declaring that if mediation isunsuccessful, parties will have opportunity to appear and settle matters in court).

180. MINN. STAT. ANN. § 257.022(2a) (West 1992) (granting visitation rights to grandparentswhen child has lived with them for 12 months or more but "is subsequently removed from thehome by his parents," and the court "finds that visitation rights would be in the best interestsof the child and would not interfere with the parent and child relationship"). See generally supranotes 123-25 and accompanying text (discussing psychological impact of severing previouslyformed grandparent-grandchild bond).

181. E.g., ALASKA STAT. § 25.24.150(c) (4) (1991) (requiring courts to consider "the love andaffection existing between the child and [the grandparent]"); ME. REV. STAT. ANN. tit. 19, §1003 (2) (F) (West Supp. 1993) (requiring courts to consider parties' "capacities to give the childlove, affection and guidance"); VT. STAT. ANN. tit. 15, § 1013(b) (1) (1989) (requiring courts toconsider "the love, affection and other emotional ties existing between the grandparentsinvolved and the child"); see also 1982 House Hearing, supra note 1, at 106 (statement of RichardS. Victor, attorney) (proposing that emotional factors be considered in determining whethervisitation is in best interests of child).

182. CAL. CIV. CODE § 197.5 (West 1983 & Supp. 1993) (requiring courts to consider "theamount of personal contact between [petitioning grandparents] and the minor children"); FLA.

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(c) whether visitation will promote or disrupt the child'spsychological development;'

(d) the physical, emotional, mental, religious, and social needsof the child;'

(e) the reasonable preference of the child, if the child is tenyears of age or if the court deems the child to be of sufficient ageand maturity to express a preference;"ta

(f) the wishes and opinions of the parent(s);'t a

(g) the willingness and ability of the petitioning grandparent(s)to facilitate and encourage a close relationship among the childand the parent(s);'

(h) the friction or animosity between the grandparent(s) andthe legal parent(s) of the child and the reasons behind suchacrimony, although consideration of this factor shall not be the solebasis for denial of visitation privileges;'t a

(i) whether the parties made a good faith effort to cooperate inmediation proceedings;"t and

(j) any other consideration relevant to a fair andjust determina-

STAT. ANN. ch. 752.01 (2) (b) (Harrison Supp. 1992) (requiring courts to consider "length andquality of the prior relationship between the child and the grandparent or grandparents"); OR.REv. STAT. § 109.121 (1) (a) (A) (1991) (conditioning visitation in part on whether grandparent"has established or attempted to establish" ongoing relationship with child); VT. STAT. ANN. tit.15, § 1013(b)(3) (1989) (requiring courts to weigh nature of grandparent-grandchildrelationship and "desirability of maintaining that relationship"); see also 1982 House Hearing, supranote 1, at 74 (statement ofJudith Areen, Professor of Law, Georgetown University Law Center,and Professor of Community and Family Medicine, Georgetown University Medical Center)(advocating that presumption in favor of continued contact should be fortified by evidence ofestablished relationship between grandparents and grandchild); id. at 106-07 (statement ofRichard S. Victor, attorney) (maintaining that relationship between grandparent and grandchildshould be considered in visitation decision).

183. GRANDPARENT VsrrATION MANUAL, supra note 7, at 122 (recommending that child'spsychological development be considered in determining what is in child's best interests).

184. ALASKA STAT. § 25.24.150(c)(1) (1991) (requiring courts to evaluate "physical,emotional, religious, and social needs" of child in determining child's best interest); FLA. STAT.ANN. ch. 752.01(2) (d) (Harrison Supp. 1992) (requiring courts to consider mental and physicalhealth of child); VA. CODE ANN. § 20-107.2 (4) (Michie Supp. 1993) (requiring courts to consider"needs" of child).

185. ALAsKA STAT. § 25.24.150(c) (3) (1991); CONN. GEN. STAT. ANN. § 46b-59 (West 1986);FLA. STAT. ANN. ch. 752.01(2) (c) (Harrison Supp. 1993); VT. STAT. ANN. tit. 15, § 1013(b) (6)(1989). See generally GRANDPARENT VISITATION MANUAL, supra note 7, at 123 (recommending thatcourt consider reasonable preference of child in determining whether to grant grandparentvisitation rights).

186. This factor addresses situations where both parents oppose grandparent visitation.187. ALAsKA STAT. § 25.24.150(c)(6) (1991); FLA. STAT. ANN. ch. 752.01(2) (a) (Harrison

Supp. 1993); VT. STAT. ANN. tit. 15, § 1013(b)(7) (1989).188. See 1982 House Hearing, supra note 1, at 105-06 (statement of Richard S. Victor, attorney)

(suggesting that courts probe into reasons for animosity among parties).189. ME. REV. STAT. ANN. tit. 19, § 1003-A (West Supp. 1993) (requiring mediation of

visitation disputes and considering whether parties made good faith effort to resolve differencesthrough mediation); 1982 House Hearing, supra note 1, at 105 (statement of Richard S. Victor,attorney) (proposing that courts consider willingness of parties to cooperate in mediationproceedings).

THE AMERICAN UNIVERsITY LAW REVIEW

tion of visitation rights.'§6

This visitation statute shall apply in cases where a child has beenadopted. Adoption shall not terminate the visitation rights of thechild's grandparent(s), as long as visitation remains in the bestinterests of the child.191

§7In an effort to promote the best interests of the child, the court

shall appoint a guardian ad litem.192 The grandparent(s) and thelegal parent(s) of the child shall share the costs of such counsel.

§8If there is a significant change of circumstances, the grandpar-

ent(s) or legal parent(s) may petition the court to consider whethervisitation remains in the best interests of the child.19 3

VI. ANALYSIS OF THE PROPOSED MODEL GRANDPARENT VISITATIONSTATUTE

A. The Best Interests of the Child Standard

A problem inherent in the best interests of the child standard isthat regardless of how many factors the courts consider, the analysis

190. ALASKA STAT. § 25.24.150(c) (9) (1991) (allowing courts to consider other "pertinentfactors"); FLA. STAT. ANN. ch. 752.01 (2) (f) (Harrison Supp. 1993) (authorizing considerationof"[s]uch other factors as are necessary in the particular circumstances"); VA. CODE ANN. § 20-107.2(9) (Michie Supp. 1993) (authorizing courts to consider any factors necessary to determinebest interests of child).

191. See supra notes 127-47 and accompanying text (discussing grandparent visitation incontext of adoption). This provision of the model statute eliminates the artificial limitation thatterminates visitation rights upon adoption or upon adoption by someone other than astepparent. See supra note 128 (citing state statutes that terminate visitation upon adoption).These are artificial limitations because even when the child is adopted by strangers, it may bein the child's best interests to continue grandparent visitation in order to acclimate the childto his or her new surroundings.

192. ALASKA STAT. § 25.24.150(b) (1991) (suggesting use of guardian adlitem); GRANDPARENTVIsITATION MANUAL, supra note 7, at 128 (summarizing ABA recommendation that effectiverepresentation by guardian ad litem can affect mediation, and thus protect child from emotionalturmoil that accompanies protracted litigation).

193. See COLO. REV. STAT. § 19-1-117(4) (Supp. 1993) ("The court may make an ordermodifying or terminating grandchild visitation rights whenever such an order would serve thebest interests of the child."); ILL. ANN. STAT. ch. 750, para. 5/607(c) (Smith-Hurd 1993)(allowing court to modify visitation order whenever modification would be in best interests ofchild); VT. STAT. ANN. tit. 15, §§ 1014-15 (1989) (allowing court to modify or terminate anyorder of visitation and that "[a]bsent a real, substantial and unanticipated change ofcircumstances, no person whose petition under this section is denied with prejudice may fileanother petition under this section sooner than one year after that denial"); WASH. REV. CODEANN. § 26.09.240 (West 1989 & Supp. 1992) ("The court may modify an order granting ordenying visitation rights whenever modification would serve the best interests of the child.

."). This requirement, among other things, would allow parents who adopt a child to petitionto end grandparent visitation.

596 [Vol. 43:563


will never be complete.'94 Each year, states add factors for courtsto evaluate in determining the best interests of the child. 95 Butconsidering that the majority of states do not specify factors fordetermining the best interests of the child, 96 some guidelines arebetter than none at all. By providing judges with guidelines, statescan prevent judges from relying on personal views and privateagendas.'97 Statutorily articulated factors are more likely to reflectthe will of the public because, compared to judges, the legislature ismore accountable to the public and more accustomed to incorporat-ing public sentiment in its decisions.'98 While far from perfect, thebest interests of the child standard remains the preferred standard indetermining child visitation rights.

1. Consideration of the grandparent-parent relationship

Unlike many current state statutes, the proposed model statute

194. See 1991 House Hearing, supra note 3, at 49 (statement of Leslie I. Levine, attorney)(commenting that "the legislature can sit up all night and come up with criteria, [but] they arealways going to miss some, and those that they have enumerated will get undue emphasis andthose that they have left out will not receive any emphasis because the judge will then bebound"); Mnookin, supra note 21, at 289 ("An inquiry about what is best for a child often yieldsindeterminate results because of the problems of having adequate information, making thenecessary predictions, and finding an integrated set of values by which to choose.").

195. SeeALAsKA STAT. § 25.24.150(c) (7) (1991) (noting that most recent addition to factorsconsidered in determining best interests of child is family's history of abuse or neglect).

196. See, e.g., ALA. CODE § 30-3-4 (1989); ARiz. REV. STAT. ANN. § 25-337.01 (Supp. 1993);ARK. CODE ANN. § 9-13-103 (Michie 1991); CAL CIV. CODE § 197.5 (West 1983 & Supp. 1993);COLO. REV. STAT. § 19-1-117 (Supp. 1993); CONN. GEN. STAT. ANN. § 46b-59 (West 1986); ILL.ANN. STAT. ch. 750, para. 5/607(b) (1) (Smith-Hurd Supp. 1993); KY. REV. STAT. ANN. § 405.021(Baldwin 1991); MD. CODE ANN., FAm. LAw § 9-102 (1991); N.Y. DOM. REL. LAW § 72 (McKinney1989); OKiLA. STAT. ANN. tit. 10, § 5 (West 1987 & Supp. 1993); TENN. CODE ANN. § 36-6-301(1991); UTAH CODE ANN. § 30-5-2 (Supp. 1993); WASH. REv. CODE ANN. § 26.09.240 (West Supp.1992); Wis. STAT. ANN. § 767.245(4) (West 1993).

197. See Fern _ndez, supra note 18, at 129 (arguing that "broad discretion allows for anunarticulated, private agenda to govern a dispute in which the court has no personal interestand is largely incapable of supervising on a day-to-day basis" and noting that manyjudges maybe influenced by fact that they themselves are grandparents). But see Carl Schneider, DiscretionRules and Law: Child Custody and the UMDA's Best-Interest Standard, 87 MICH. L. REv. 2215, 2247(1991) (noting that "[d]iscretion can lead to better decisions because they can be tailored tothe particular circumstances of each case"). Schneider argues:

Discretion gives the decisionmaker flexibility to do justice. It does so not just byallowing a decisionmaker to heed all the individual facts that ought to affect a decisionbut that could not be listed by rules. ... Discretion may also conduce to betterdecisions by discouraging overly bureaucratic ways of thinking, since they often areborn of too rigid an insistence on writing elaborate rules and on following them withtoo mechanical regularity.

Id.198. See Fernindez, supra note 18, at 129 ("Allowing a judge to impose personal values

arguably is worse than directing him or her to impose values that a legislature has chosen,because a judge is less personally accountable to the public than is the representativelegislature."). Although some state judges are elected, they are less accountable to the publicthan legislatures because, unlike legislatures, they do not receive abundant public comment andare not forced to compromise with others in an effort to pass a bill.

THE AMERICAN UNvERsrrY LAW REVIEW

considers several important aspects of the relationship among thechild's parents and grandparents. Although grandparent visitationcan be beneficial for a child,1" the contact between the grandpar-ents and a grandchild is dictated by the child's parents. As a result,the relationship between the grandparents and the child's parentsoften determines how beneficial visitation will be for the child.2"°

When the grandparent-parent relationship is contentious, that strainmay expand into a legal battle for visitation, which can become abattle for the child's affections and amplify the acrimony among theadults." 1 Beginning the petition for visitation with mediation mayhelp the parties come to an accord which is both mutually agreeableto the parties and beneficial to the child." 2 If mediation is notsuccessful, the court will then consider the grandparent-parentrelationship in determining whether visitation will be in the child'sbest interest.

2. Child's preference

Considering the child's preference in grandparent visitationdisputes makes practical sense because the child's happiness shouldbe the ultimate concern in such disputes. Utilizing the child'spreference as a factor, however, does create some problems. Forinstance, the child may want to visit with a grandparent because thegrandparent provides the child with special treats and attention. Achild in this situation is not in any position to determine objectivelywhether visitation is in his or her best interest.0 Additionally,expressing a preference that is contrary to the wishes of a parent cancreate a disturbing loyalty conflict for the child." 4 By limitingconsideration of the child's preference to cases involving children atleast ten years of age, courts are able to contemplate this factor only

199. See Thompson et al., supra note 1, at 1218-19 (discussing benefit to child of havingaccess to grandparent as playmate, family historian, and mentor).

200. See Matthews & Sprey, supra note 4, at 41 (noting that most significant aspect ofgrandparent-grandchild bond is grandparent-parent relationship); Thompson et al., supra note17, at 1219 (determining that nature of grandparent-parent relationship significantly affectsbenefits and nature of grandparent-grandchild relationship).

201. See Derdeyn, supra note 7, at 279 (positing that when visitation battle becomes contestfor child's affection, such contest can be detrimental to child) (citing Commonwealth x e!.McDonald v. Smith, 85 A.2d 686, 688 (Pa. Super. Ct. 1952)).

202. See infra notes 210-18 and accompanying text (discussing benefits and drawbacks ofmediation on visitation proceedings).

203. See AREEN, supra note 164, at 560 (questioning how child is to determine which parentwould be more fit in custodial situation).

204. SeeARtEEN, supra note 164, at 560 (discussing loyalty conflict and "terrible responsibility"that expressing preference may impose on child).

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when children are generally capable of making such decisions.20 5

The diminution of a potential loyalty conflict and the child's personalinvestment in his or her own happiness establish the child's prefer-ence as a valuable factor.

B. The Guardian Ad Litem

As custody and visitation hearings increasingly concentrate on thebest interests of the child, the use of guardians ad litem has expandedmarkedly.2°u The use of a guardian ad litem has been criticized asan unnecessary expense that simply adds another person to an alreadycomplicated domestic dilemma.2°

' The guardian ad litem, however,can serve as an objective third party who can investigate the familydispute more completely than a judge can. Further, a guardian adlitem would ensure that the child's interests are not overlooked duringthe visitation determination, and can encourage resolution of thevisitation problem on a more amicable basis.20 ' The potential existsfor the guardian ad litem's role to become overbroad and overempha-sized by the judge, but this danger can be prevented by allowing theparties to cross-examine the guardian and any witnesses that theguardian relied on in forming his or her evaluation, and by requiringthe guardian to submit a written report of his or her findings. 2

09

205. But see AREEN, supra note 164, at 560-61 (preferring maturity test for child rather thanchronological test and questioning whether child's best interests should be viewed from long-term or short-term perspective because "conditions that make a person happy at age seven mayhave adverse consequences at age thirty").

206. See GRANDPARENT VISrrATON MANUAL, supra note 7, at 128 (noting that Wisconsin andNew Hampshire, for example, now mandate appointment of guardians ad litem in contestedcustody cases).

207. See Mnookin, supra note 21, at 13 (criticizing use of guardian ad litem). Mr. Mnookinargues:

[T]he child advocate is in no better position than the judge to determine the child'sbest interest. While he [sic] may have acquired a great deal of information regardingthe past relationships among the parties, he [sic] cannot make predictions regardingthe future of those relationships .... The result can only be an uncertain and perhapsunwarranted position or the substitution of the advocate's own feelings and values forthe 'position of his [sic] client.'

So long as the best interest test remains the standard in private custody disputes...the use of a child's advocate will probably grow. However, the appointment of anadvocate will not make judicial decisions easier nor will the predicted results be anymore accurate.

Id.208. See GRANDPARENT VISITATION MANUAL, supra note 7, at 128 (extolling benefits of

guardian ad item in grandparent visitation proceedings).209. Cf. Collins v. Collins, 324 S.E.2d 82, 85 (S.C. Ct. App. 1984) (holding that failure to

make report of guardian ad litem available and to allow cross-examination is reversible error).

THE AMERICAN UNrvEPSr1y LAW REViEW [Vol. 43:563

C. Mediation

Mediation is a positive alternative to courtroom litigation thataddresses both the legal and emotional components of familydisputes."' Mediation is not an adjudicatory process; rather, theparties attempt to achieve a resolution suitable to the family'sparticular desires and needs.2 ' Because it is less adversarial thanlitigation, mediation provides numerous benefits to the family: it isless expensive than litigation, it provides a "personalized model fordispute resolution,"22 and it helps the parties cooperate with eachother." And compared to other dispute resolution mechanisms,mediation minimizes state intervention in the family. 4 The statealso benefits from mediation because resolving family disputesthrough mediation reduces the case burden on the court system. 15

While mediation clearly has its advantages, it also has severaldisadvantages. Mediation does not use all of the defined proceduresthat accompany judicial proceedings, and as a result, the mediationprocess might fail to treat all of the parties fairly.216 In addition,

210. SeeJay Folberg, Divorce Mediation-A Woikable Alternative, inJUDITH AREEN, CASES ANDMATERIALS ON FAMILY LAw 851 (3d ed. 1992) (asserting that mediation recognizes maritaldissolution as "both a matter of the heart and of the law").

211. See id. at 853 (noting that mediation does not emphasize winning or losing but insteadfocuses on developing some "resolution that best meets the family's own unique needs").Mediation is particularly effective in family disputes:

[T] he mere presence of a third party tends to put the parties on their good behavior,[so] that the mediator can direct [the parties] verbal exchanges away from recrimina-tion and toward the issues that need to be faced, that by receiving separate andconfidential communications from the parties [the mediator] can gradually bring intothe open issues so deep-cutting that the parties themselves had shared a tacit tabooagainst any discussion of them and that, finally, [the mediator] can by his managementof the interchange demonstrate to the parties that it is possible to discuss divisive issueswithout either rancor or evasion.

Lon Fuller, Mediation Its Forms and Functions, 44 U.S.C. L. REV. 305, 314 (1971).212. Folberg, supra note 210, at 852.213. Folberg, supra note 210, at 852.214. See Folberg, supra note 210, at 853 (attesting that mediation allows families to make

decisions for themselves and encourages self-determination, thereby reaffirming "the dignity andimportance of the family as a self-governing unit"). Folberg also points out that state intrusioninto the decisionmaking role of the parents makes the family process less likely to operateindependently in the future and, thus, increases the likelihood of continued state regulationthrough court-imposed orders. Id.; see also GRANDPARENT VISITATION MANUAL, supra note 7, at126 (asserting that mediation fosters privacy and self-determination, both of which are importantin resolving family disputes).

215. Folberg, supra note 210, at 851-58 (acknowledging and describing benefits ofmediation).

216. See Folberg, supra note 210, at 854 (explaining that mediation "lacks the precise andperfected checks and balances that are the principal benefit of the adversary process" and that"[t]he purposeful 'a-legal' character of the mediation creates a constant risk of overreachingand dominance by the more knowledgeable, powerful or less emotional party"); see also DanielCrouch, TheDark Sidels Still Unexplored 4 FAM. ADVOc. 27,33 (1982) (suggesting that mediationmay simply add another layer to process that is already long and costly, and that one party'signorance as to how adjudicatory proceeding would handle dispute usually benefits other party).

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mediation considers the emotional elements of the family dispute;while this aspect of mediation makes it attractive to families, it issometimes difficult to balance the emotional concerns with the legalconsiderations. 17 Further, mediation strives for compromise, butin certain circumstances, compromise may be neither appropriate norfeasible." 8 Mediation does not magically resolve all problems andleave every party satisfied. The benefits of allowing a family to resolveits own disputes and of limiting the psychological damage that a full-scale trial could have on a child, however, make mediation a positivecontribution to the resolution of grandparent visitation disputes.

CONCLUSION

With increasing regularity, children find themselves the subject oflegal disputes among family members. The toll that a legal visitationbattle takes on a child is alarming. Domestic strife, always emotional,is especially disturbing to a child.

To alleviate the stress experienced by all parties involved in disputesover visitation rights, state legislatures need to provide courts withclearly defined guidelines for granting grandparent visitation rights.Currently, in deciding whether to grant grandparent visitation rights,courts attempt to determine what is in the best interests of the child.This noble endeavor is often defeated because legislatures fail todefine how courts should determine such interests. A modelgrandparent visitation statute that would respect parental autonomyand establish clear, well-defined guidelines for determining whengrandparent visitation would be in the best interests of the child isnecessary. Adoption by all states and the District of Columbia of sucha statute would ensure consistent and fair treatment for all parties andminimize trauma for the child.

217. See Folberg, supra note 210, at 854.218. See Folberg, supra note 210, at 856 (recognizing that some demands and expectations

that cleave families are so emotionally harmful, either intentionally or from "emotionalblindness," that compromise should not be realized, and mediator must be ready to facilitateappreciation of this possibility "and not hide behind the easy rubric that all positions can becompromised").

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